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.
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.