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T-4206-79
Eurobulk Ltd. (Plaintiff)
v.
Wood Preservation Industries (Defendant)
Trial Division, Dubé J.—Montreal, October 15; Ottawa, October 23, 1979.
Jurisdiction — Foreign maritime arbitration award — Plaintiff claiming judgment to enforce arbitration award ren dered at London, England — Whether Court has jurisdiction to give executory force to award granted by a foreign body where subject matter falls under navigation and shipping — Motion by defendant for leave to file conditional appearance for purpose of objecting to jurisdiction denied — The Admi ralty Jurisdiction Court Act, 1861, 24 & 25 Vict., c. 10, s. 23 — Colonial Courts of Admiralty Act, 1890, 53 & 54 Vict., c. 27 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 22(2) (i).
Tropwood A.G. v. Sivaco Wire & Nail Co. [1979] 2 S.C.R. 157, followed. Crane v. Hegeman-Harris Co. Inc. [1939] 1 All E.R. 662, referred to.
MOTION. COUNSEL:
Gerald Barry for plaintiff. Marc Nadon for defendant.
SOLICITORS:
McMaster Meighen, Montreal, for plaintiff.
Martineau, Walker, Allison, Beaulieu, MacKell & Clermont, Montreal, for defend ant.
The following are the reasons for order ren dered in English by
DuBÉ J.: The defendant has moved for leave to file a conditional appearance pursuant to Rule 401 for the purpose of objecting to the jurisdiction of this Court. In his affidavit learned counsel for the defendant alleges that this Court has no jurisdic tion "over the subject matter of Plaintiff's action, namely the recognition and enforcement of an arbitration award rendered at London, England on August 28, 1979".
By its statement of claim plaintiff has applied to this Court so that it "might give executory force,
by way of judgment, to the arbitration award which it validly obtained in accordance with the charterparty, the agreement of the parties and the law of arbitration as applied in the U.K." The prayer reads:
WHEREFORE, the Plaintiff prays this Honourable Court to, by judgment to intervene herein, order the Defendant to pay to the Plaintiff the Canadian equivalent of [the] sums [awarded to it by arbitration, together with interest on those sums] from the 28th August 1979, to the date of judgment herein as well as to the date of payment at 12% per annum, and that, further, this Honourable Court do by the same judgment, give executory force within this jurisdiction, against the Defendant, to the arbitration award obtained and to award to the Plaintiff the costs of this action.
It is common ground that this Court has juris diction to hear and settle disputes arising between parties to a charterparty under paragraph 22(2)(i) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, which reads:
22....
(2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any claim or question arising out of one or more of the following:
(i) any claim arising out of any agreement relating to the carriage of goods in or on a ship or to the use or hire of a ship whether by charter party or otherwise
Undoubtedly this Court would have been com petent to deal with this dispute arising from an agreement relating to the hire of a ship. But the nicer and more perplexing issue to be resolved here is whether or not this Court has jurisdiction to give executory force to an award granted by a foreign body, where the subject matter of the award falls under navigation and shipping.
The problem, of course, must be envisaged in the light of recent Supreme Court of Canada decisions, and more specifically Quebec North Shore v. Canadian Pacific Ltd.,' to the effect that there must be applicable and existing federal law, by way of statute, regulation, or common law, for the exercise of the jurisdiction of the Federal Court. It is not sufficient' that the subject matter be of federal legislative competence.
' Quebec North Shore Paper Co. v. Canadian Pacific Ltd. [1977] 2 S.C.R., pp. 1054-1066.
It must be borne in mind that under section 92(14) of The British North America Act, 1867 [R.S.C. 1970, Appendix II, No. 5] each Canadian province has exclusive control over the recognition and enforcement of foreign money judgments. 2 The defendant is a Quebec corporation with assets in that Province which has its own laws governing the exemplification of foreign judgments. The other Canadian provinces have their own Recipro cal Enforcement of Judgments Act, but there is no such federal statute.
Again, the plaintiff does not seek to enforce a foreign judgment, but an award issued by an Umpire in London, England.
Learned counsel for the plaintiff asserts, and rightly so t that the enforcement of admiralty and maritime decisions of foreign courts forms part of the ancient, inherent jurisdiction of the English Court of Admiralty. In earlier years, apart from statute, the award of an arbitrator on a reference by agreement could be enforced only by action. More summary remedies were forthcoming. In 1698 it was provided that the parties might agree that the submission should be made a rule of Court and the Court would rule accordingly; any party disobeying the award was made liable to a penalty. The Common Law Procedure Act, 1854, 17 & 18 Vict., c. 125, went further and provided that any written agreement could be made a rule of Court unless it provided to the contrary. The Arbitration Act, 1889, 52 & 53 Vict., c. 49, stipu lated that an award on submission could, by way of the Court, be enforced in the same manner as a judgment.'
The duty of the Admiralty Courts of England to enforce decrees of foreign Admiralty Courts has been recognized as far back as 1608. 4 Sir Leoline
2 Vide Castel on Canadian Conflict of Laws, Chap. 14, p.
536.
Viscount Finlay in Duff Development Co., Ltd. v. Govern
ment of Kelantan [ 1924) A.C. 797.
4 Sir R. Phillimore in The City of Mecca (1879) 4 Asp. 187.
Jenkins (Wynne's Life, vol. 2, p. 762) wrote in 1666 that "'Tis a ruled case that one judge must not refuse upon letters of request to execute the sentence of another foreign judge when the persons or goods sentenced against are within his jurisdiction".
Counsel argues that admiralty jurisdiction over arbitrations and the enforcing of awards "in all Causes and Matters depending in the said Court" was expressly conferred by The Admiralty Juris diction Court Act, 1861, 24 & 25 Vict., c. 10, section 23, which reads:
23. All the Powers possessed by any of the Superior Courts of Common Law or any Judge thereof, under the Common Law Procedure Act, 1854, and otherwise, with regard to References to Arbitration, Proceedings thereon, and the enforcing of Awards of Arbitrators, shall be possessed by the Judge of the High Court of Admiralty in all Causes and Matters depending in the said Court, and the Registrar of the said Court of Admiralty shall possess as to such Matters the same Powers as are possessed by the Masters of the said Superior Courts of Common Law in relation thereto. [My underlining.]
He contends that such jurisdiction as conferred by The Admiralty Jurisdiction Court Act, 1861 (and adopted by the Colonial Courts of Admiralty Act, 1890, 53 & 54 Vict., c. 27) is referentially incorporated by subsection 2(b) of our Federal Court Act. His authority for that proposition is a recent Supreme Court of Canada decision, Trop- wood A.G. v. Sivaco Wire & Nail Co.'
The present day British Arbitration Act 6 defines the authority of the Umpire, outlines the conduct of the arbitration proceedings, makes provisions as to awards and their enforcement. There is no similar Canadian legislation.
The plaintiff decided not to go the full route provided by the British Act but to sue in a Canadi- an Court, as defendant has assets in this country and presumably none in England.
If an award were a foreign judgment issued out of a court of law, the Federal Court of Canada
5 [1979] 2 S.C.R. 157.
6 Arbitration Act, 1950, c. 27, amended by the Arbitration Act 1975, c. 3 (an Act to give effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards).
would have no jurisdiction to enforce it. Unlike England, Canada is not a unitary state and the provinces of this country hold, as mentioned before, exclusive jurisdiction over the enforcement of foreign judgments.
But such is not the case here. Basically, plain tiff's claim is a claim arising out of a charterparty agreed to by the two parties to this action. Both parties also agreed to be bound by an award. The award has been granted and is now outstanding as between the two. "An action upon an award is in substance an action to enforce an agreement, the agreement being implied in the submission to arbi tration, that the parties will pay that sum or do that thing which is awarded by the arbitrator".'
The applicable and existing federal law to nour ish the exercise of Federal Court jurisdiction over such matters is The Admiralty Jurisdiction Court Act, 1861 aforementioned, and more specifically section 23 thereof, as referentially incorporated by the Federal Court Act. Paragraph 22(2)(i) of the Act declares for greater certainty that the Trial Division has jurisdiction with respect to any claim arising out of any agreement relating to a charterparty.
The motion therefore is decided in favour of the plaintiff, with costs. Defendant, however, will have ten days in which to file a defence.
ORDER
The Court has jurisdiction. Defendant's motion denied. Costs to plaintiff. Defendant has ten days in which to file a defence.
7 Crane v. Hegeman-Harris Co. Inc. [1939] 1 All E.R. 662, per Simonds J. at p. 671.
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