Anraj Fish Products Industries Ltd. v. Hyundai Merchand Marine Co. Ltd.
T-1571-99
Reed J.
10/12/99
7 pp.
Appeal from prothonotary's order staying action pending litigation of dispute in Seoul Civil District Court-Action claiming $150,000 as compensation for damages arising out of defendants' carriage of cargo of fish from Bangladesh to New York-Alleged cargo delivered in contaminated condition due to thawing in transit in breach of specific instructions-Fish destined for customers in New York-Cargo inspected in New York-Evidence relating to state of fish, unsuitability for human consumption will come from New York witnesses-Accident allegedly giving rise to damage occurring in France-Plaintiff, Bengal, Ontario corporation-Conclusion of contract with Hyundai taking place at Hyundai's Toronto office-Hyundai Korean company with offices around world-Jurisdiction clause in bill of lading stating all actions concerning carriage shall be brought before Seoul Civil District Court in Korea-Bengal not having resources to go to Korea to take legal action against Hyundai-If required to do so, will be forced to drop claim-The Eleftheria, [1969] 1 Lloyd's Rep. 237 (Adm. Div.) setting out legal principle for staying claim: when jurisdiction clause exists in bill of lading, onus shifting to plaintiff to establish "strong cause" to militate against staying defendant's claim matter should be litigated in forum identified in bill of lading-Factors identified in The Eleftheria as relevant to whether strong cause exists including in what country evidence on issues of fact situated, or more readily available-Appeal allowed-Korean law not applicable-Most likely United States law applies-No connection between facts of case and Korea-Some of relevant facts occurring in Canada (presentation of bill of lading)-Some of evidence (that of Bengal) located in this jurisdiction-Not shown witnesses from France could more easily, less expensively attend in Korea, rather than Canada-Evidence more readily available, less expensive in Canada than Korea-Prothonotary erred in focussing on Canada not being country where evidence on issues of fact situated-The Eleftheria stating consideration should also be given to where evidence more readily available and least expensive-Evidence from New York more readily available in Toronto as result of geographic proximity, common language-Also means costs will be less-Prothonotary erred in that failed to apply full test set out in The Eleftheria-Focussed on one part of test, limited factual connection to Canada, without also asking in which jurisdiction evidence would be more readily available, and pursuit of litigation less expensive.