T-6270-79
Burrard-Yarrows Corporation (Plaintiff)
v.
The Hoegh Merchant, Leif Hoegh & Co. A/S
(Defendants)
Trial Division, Collier J.—Vancouver, March 2
and 24, 1981.
Practice — Motion to stay plaintiff's action for damages re
cargo — Bill of lading provided that courts of country where
carrier had its principal place of business had jurisdiction over
disputes — Carrier is registered in Norway — Defendants
undertake to agree to extension of time for filing of suit in
Norway and agree that guarantee will apply to the proceedings
in Norway — Motion allowed — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 50(1)(b).
MOTION.
COUNSEL:
D. F. McEwen for plaintiff.
W. Perrett for defendants.
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for plaintiff.
Macrae, Montgomery & Cunningham, Van-
couver, for defendants.
The following are the reasons for order ren
dered in English by
COLLIER J.: This is a motion on behalf of the
defendants to stay the plaintiff's action.
The plaintiff was the owner, and consignee
under a bill of lading, of two marine diesel engines
and 27 cases of related parts. The engines were
manufactured in West Germany. The bill of lading
was issued at Hamburg on November 18, 1979,
acknowledging that the goods had been shipped on
board at Bremen. The engines were to be shipped
to the plaintiff consignee in Vancouver. During the
voyage the two diesel engines, during heavy
weather, broke loose from their fastenings. They
were very badly damaged. The damage was
inspected by representatives of various interests at
San Francisco and Vancouver. They were ulti
mately sold on an "as is where is" basis.
The claim for damages is substantial.
Clause 26 of the bill of lading is as follows:
26. Law and Jurisdiction: Any claim or dispute arising under
this Bill of Lading shall be determined by the Courts of the
country where the Carrier has its principal place of business
and according to the laws of that country except as provided
elsewhere herein.
The carrying vessel is registered at Oslo,
Norway. She was owned at all material times by
the defendant company. That company was incor
porated under the laws of Norway and has its
principal place of business in Oslo.
The plaintiff commenced its action in this Court
on December 21, 1979. The vessel was threatened
with arrest. A letter of guarantee was given to the
plaintiff by the defendants' Protection and Indem
nity Club [hereinafter referred to as the Club or
the P & I Club]. The Club undertook to pay any
judgment up to $3,500,000, and to furnish bail in
that amount if demanded.
The defendants rely on the jurisdiction clause
earlier set out. The defendants say they propose to
call a number of witnesses from Norway and West
Germany to establish the various defences alleged
in the defence, as well as to contest the extent of
the damage. The defendants say, on those grounds,
the plaintiff should be held to its bargain as to
jurisdiction; this action should be stayed. The
plaintiff should bring its action in the courts in
Norway.
The defendants have agreed that should this
action be stayed and action be brought by the
plaintiff in Norway, the undertaking by the
defendants' P & I Club will apply to the proceed
ings in Norway. The defendants have also under
taken to agree to an extension of time for the filing
of suit by the plaintiff in Norway.
Affidavit evidence was put forward by the plain
tiff, indicating the witnesses it proposed to call
from this jurisdiction and from California.
A lengthy argument ensued. There was a dif
ference of view as to the onus, in Canada, in
respect of an application of this kind. A good deal
of time was spent in establishing the probable
number of witnesses necessary for each side.
The plaintiff endeavoured to show that, on that
kind of a count, the logical forum was in this
jurisdiction. I do not think a mathematical count is
conclusive. It is merely one of many factors to be
considered whether the Court, in its discretion, will
order a stay or permit the present proceedings to
continue.
In my opinion the applicable principles to be
applied in a motion of this kind are those set out
by Brandon J. in The ' Eleftheria" [ 1969] 1
Lloyd's Rep. 237 at page 242:
The principles established by the authorities can, I think, be
summarized as follows: (I) Where plaintiffs sue in England in
breach of an agreement to refer disputes to a foreign Court,
and the defendants apply for a stay, the English Court, assum
ing the claim to be otherwise within the jurisdiction, is not
bound to grant a stay but has a discretion whether to do so or
not. (2) The discretion should be exercised by granting a stay
unless strong cause for not doing so is shown. (3) The burden of
proving such strong cause is on the plaintiffs. (4) In exercising
its discretion the Court should take into account all the circum
stances of the particular case. (5) In particular, but without
prejudice to (4), the following matters, where they arise, may
be properly regarded: (a) In what country the evidence on the
issues of fact is situated, or more readily available, and the
effect of that on the relative convenience and expense of trial as
between the English and foreign Courts. (b) Whether the law
of the foreign Court applies and, if so, whether it differs from
English law in any material respects. (c) With what country
either party is connected, and how closely. (d) Whether the
defendants genuinely desire trial in the foreign country, or are
only seeking procedural advantages. (e) Whether the plaintiffs
would be prejudiced by having to sue in the foreign Court
because they would (i) be deprived of security for that claim;
(ii) be unable to enforce any judgment obtained; (iii) be faced
with a time-bar not applicable in England; or (iv) for political,
racial, religious or other reasons be unlikely to get a fair trial.
After considering the affidavit evidence filed on
behalf of the parties, the jurisprudence cited, and
the submissions made, I have concluded it is in the
interest of justice', as well as on a balance of
convenience, that this action should be stayed.
There will, therefore, be an order staying the
present action. There will be a proviso that the
defendants furnish the undertaking as to security
in Norway, and agree to the extension of any time
limits.
UPON MOTION dated the 17th day of Septem-
ber, 1980 on behalf of the defendants for an order
that the plaintiff's action be stayed,
ORDER
UPON
(a) the defendants, or their Protection and
Indemnity Club undertaking that the letter of
guarantee dated January 17, 1980 by Assur-
anceforeningen Skuld (Gjensidig) shall extend
to and cover the defendants' liability in respect
of any judgment obtained by the plaintiff
against the defendants in the courts of Norway;
(b) the defendants agreeing to extend the time
within which the plaintiff may bring suit against
them in the courts of Norway;
all further proceedings in the present action are
stayed.
2. The costs of this motion are in the cause.
' See paragraph 50(1)(b) of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10.
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.