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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.