Digests

Nissho Iwai Co. v. Shanghai Ocean Shipping Co.

T-2039-98

Gibson J.

20/6/00

8 pp.

Application by applicant/defendant for order action be stayed in interest of justice in that Canada not convenient forum--Bulk carrier Ning Hai chartered by Canadian company to deliver cargo from Vancouver to ports in Japan--Ship grounded off Kurile Islands and cargo total loss--Plaintiffs all corporations incorporated under laws of Japan--Defendant incorporated under laws of People's Republic of China--Plaintiffs alleging owners of cargo; grounding of ship caused by incompetence of officers and crew provided by defendant; defendant owed plaintiffs duty of care to provide competent and qualified officers and crew; defendant breached that duty of care--In result, plaintiffs claim against defendant substantial general and special damages, pre-judgment and post-judgment interest on damages and costs of action--Application allowed--On evidence, real and substantial connection of action is to China, not Canada--Substantially all, if not all of evidence as to steps taken by defendant to fulfill duty of care will have to come from China, certainly not Canada--While action commenced in Canada, defendant has offered waiver of reliance on time-bar in China and stay of action can be made conditional on waiver and acceptance by appropriate courts in China--While assessment of damages might require evidence from Canada, assessment secondary issue--Availability in Canada of discovery of documents and examinations for discovery, advantages not afforded in China, not outweighing real and substantial connection of matter to China--Same true for differential in cost of conducting litigation in Canada and China and differences regarding cost awards--Defendants most closely connected to China--Plaintiffs having no substantial connection to Canada.