MARITIME LAW |
Practice |
Anraj Fish Products Industries Ltd. v. Hyundai Merchant Marine Co.
A-836-99
Sexton J.A.
20/6/00
7 pp.
Appeal from Motions Judge's decision ([2000] 1 F.C. D-37) allowing appeal from prothonotary's order staying action pending litigation of dispute in Seoul Civil District Court--Whether clause contained in bill of lading, providing any action relating to carriage of goods under bill of lading should be brought in Korea, should be enforced--Respondent, Bengal Seafoods Inc., bought cargo of fish from respondent Anraj, Bangladeshi company--When fish arrived in New York, found not fit for human consumption--Respondents commenced action in Court against Hyundai for damages, alleging negligence on part of Hyundai in carriage of goods--Hyundai obtained stay of action from prothonotary, based on Korean jurisdiction-selection clause contained in bill of lading--In ordering stay, prothonotary relied on decision Eleftheria, The, [1969] 1 Lloyd's Rep. 237 (Adm.)--Prothonotary's decision appealed to Motions Judge who held prothonotary failed to apply full test set out in The Eleftheria case--Motions Judge erred by reversing decision of prothonotary--Likely evidence required of witnesses from Bangladesh, France, U.S.A.--Motions Judge erred in saying clear Korean law would not apply to matter in dispute--Korean procedure not differing from Canadian procedure in any material respects--Differences between Canadian, Korean discovery procedures not amounting to "really serious defects" in Korean Court's procedure--No evidence to support conclusion Hyundai's main motive in seeking stay of proceedings to attempt to seek procedural advantage--Agreeable to Court imposing condition whereby time bar waived provided jurisdiction-selection clause honoured--No strong reasons to conclude not reasonable, just to hold plaintiffs to jurisdiction-selection clause--Appeal allowed.