MARITIME LAW |
Practice |
Magic Sportswear Corp. v. Mathilde Maersk (The)
T-1372-03
2003 FC 1513, Milczynski P.
22/12/03
8 pp.
Defendants bringing motion for stay of action on basis of forum selection clause contained in bill of lading for shipment of goods, and on basis of doctrine of forum non conveniens-- Action arising out of claim for partial loss of cargo of goods shipped in container by sea--Plaintiffs shipper and consignee of goods and defendants carriers of goods-- Defendants arguing England more convenient and appropriate forum for conduct of trial--Marine Liability Act, s. 46 clearly removes determining or binding effect of forum selection clause in bill of lading or contract for carriage of goods by sea--In determining whether Court should exercise discretion to order stay in these types of proceedings, number of factors relevant, including jurisdiction in which evidence situated, application of foreign law, with what country each party has connection, whether defendant seeking procedural advantage by relying on forum selection clause, and whether plaintiff would suffer any prejudice by having to pursue claim in another jurisdiction-- In this case, taking into account all of facts and surrounding circumstances relating to shipment of goods from New York to Monrovia, most convenient and appropriate forum for determination of plaintiffs' claim, including interpretation and application of English law, is Federal Court of Canada-- Motion for stay of these proceedings dismissed--Marine Liability Act, S.C. 2001, c. 6, s. 46.