Thyssen Canada Ltd. v. Mariana ( The )
T-2035-98
Blais J.
7/5/99
12 pp.
Action for damages to cargo-Notice of application for referral to arbitration, stay of proceedings pursuant to Federal Court Act, s. 50-Two bills of lading for carriage of hot rolled carbon steel coils from Romania to Canada aboard Mariana-Defendant submitting contract between plaintiff, defendant in bill of lading, incorporating arbitration clause-Details of charter party not completed on overleaf side of bill of lading-Two charter parties concerning Mariana: (1) between first defendant and Hawknet; (2) subcharter governing voyage for which claims made-Plaintiff alleging charter party irrelevant to agreement contained in bills of lading as charter party not in existence until two days after second bill of lading signed-Pursuant to Commercial Arbitration Code, arts. 7, 8 Federal Court must refer parties to arbitration if arbitration agreement existing between parties-To determine existence of such agreement, Court must address following questions: (1) whether bills of lading incorporate arbitration clause; (2) whether contract between plaintiff, defendant in bills of lading-(1) Bills of lading, clause 1 stating all terms, conditions of charter party, including arbitration clause, incorporated-Despite fact Hamburg Rules might have force of law in Romania, art. 22 permitting parties to provide by agreement that any dispute shall be referred to arbitration, and where charter party containing such provision and bill of lading issued pursuant to charter party not containing special annotation providing such provision shall be binding upon holder of bill of lading, carrier may not invoke such provision as against holder having acquired bill of lading in good faith-Clause 1 appearing on bills determinative in concluding agreement to refer disputes to arbitration, and that supersedes application of Hamburg Rules-(2) Absence of date of charter party in bill of lading neither unusual nor obstacle to incorporation of charter-Mere omission to include date of charter party in bill of lading not negativing intention to incorporate terms of charter party in bill of lading: The San Nicholas, [1976] 1 Lloyd's Rep. 8-Both head charter, subcharter subjected to English law, London arbitration-Subcharter incorporated-Two bills of lading incorporated English law, London arbitration clause in respect of which charter incorporated-Even if charter parties not mentioned on bill of lading, Court could decide incorporated, pursuant to clause 1 of same bill of lading, and this bill of lading could be read as if charter parties mentioned on it-Clause 1 of bill of lading having effect to incorporate arbitration clause included in charter parties relating to bill of lading-Holder of bill of lading specifically incorporating arbitration clauses in charter party bound by arbitration clause-Bill of lading calling for application of Hague Rules-Under Canadian law, term of contract prevailing-Action stayed-Commercial Arbitration Code, R.S.C., 1985 (2nd Supp.), c. 17, Schedule, arts. 7, 8-Federal Court Act, R.S.C., 1985, c. F-7, s. 50.