Date: 20130523
Docket: T-1595-12
Citation: 2013 FC 534
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
BETWEEN:
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DHL
GLOBAL FORWARDING
(CANADA)
INC.
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Plaintiff
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and
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CMA-CGM
S.A.
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Defendant
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REASONS FOR ORDER
PROTHONOTARY
MORNEAU
[1]
This is a motion by the defendant CMA‑CGM S.A. (at
times, CMA CGM) pursuant to section 50 of the Federal Courts Act,
RSC 1985, c F‑7, for a stay of the declaratory action filed on
August 28, 2012, by the plaintiff, DHL Global Forwarding (Canada) Inc.
(DHL), and this, by reason of a jurisdiction clause found in bills of lading
and which, in essence, provides as follows:
30. LAW AND JURISDICTION
…
(2)
Jurisdiction
All actions against Carrier under the contract of Carriage
evidenced by this Bill of Lading shall be brought before the “Tribunal de
Commerce de MARSEILLE” and no other Court shall have jurisdiction with regards
to any such action. Actions against the Merchant under the contract of Carriage
evidenced by this Bill of Lading may be brought before the “Tribunal de
Commerce de MARSEILLE” or, in Carrier’s sole discretion, in another court
of competent jurisdiction. [Emphasis in original.]
(Jurisdiction
clause)
Background
[2]
This declaratory action undertaken by DHL and the
proceedings initiated by CMA‑CGM S.A. before the said Tribunal de
Marseille in France (the French proceedings) relate to demurrage (surestaire)
and storage (stockage) charges that have accumulated and continue to
accumulate daily (as of August 15, 2012, the total was in the order
of $681,655.55 US) due to the fact that 68 containers
transported by sea from Halifax by CMA‑CGM S.A. remain on the quays in Ho
Chi Minh City, Vietnam, given that the bills of lading in question are being
held by DHL and have therefore not been remitted to the consignee (destinataire)
Tan Mai Group Joint Stock Company (Tan Mai) thereby allowing Tan Mai to obtain
a proper release of the shipment from CMA-CGM S.A..
[3]
Without having to delve further into the matter, it appears
that DHL is holding the bills of lading because HSB International (HSB), in its
capacity as shipper (expéditeur) failed to repay, in whole or in part,
the freight charges that it, DHL, had paid to the carrier CMA‑CGM S.A. through
the carrier’s agent in Canada, namely, CMA‑CGM Canada. The position taken
by HSB might be rooted in its dispute with Tan Mai.
[4]
In any event, having met its obligations as a container
carrier (transporteur), CMA‑CGM S.A. does not agree with having to
assume the demurrage charges and is therefore seeking, in the French
proceedings, joint payment of these charges in respect of, among others, DHL
and Tan Mai.
[5]
Following the Court’s assessment, the action instituted by DHL
is evidently in reaction to the French proceedings by CMA‑CGM S.A., which
were commenced on August 24, 2012, when French counsel sent a
notice to that effect. The French proceedings, as such, were instituted on or
about September 14, 2012. It should be noted that the present action in
our Court was filed in the meantime on August 28, 2012.
[6]
Thus, in its statement of claim in this case, DHL is
seeking a declaration exempting it from any liability with regard to demurrage
charges. Paragraphs 1 a) and b) of this statement of claim read
as follows:
1. Plaintiff claims judgment declaring that:
a)
Plaintiff is not liable to Defendant for the payment of the
sum of $681,655.55 (US$681,655.55) or any other charges related to or arising
from the performance of the contract(s) of carriage by ocean as evidenced by
Defendant’s bills of lading nos. CA1310736, CA1311126, CA1310767, CA1309771,
CA1309411, CA1308901, CA1307765, CA1308170, CA1308265, CA1309047 and
consequential services such as container demurrage and port storage services,
and that,
b)
with respect to the aforesaid bills of lading, Plaintiff is
not bound by any of the terms and conditions stated therein.
[7]
To assess the positions of CMA‑CGM S.A. and DHL in
these proceedings as to DHL’s possible liability for the demurrage charges, and
the application of the jurisdiction clause, the following facts and documents
should be noted.
[8]
CMA‑CGM S.A. is an international carrier of goods by
container. It operates in Canada through its agent CMA‑CGM Canada.
[9]
As for DHL, there is no dispute that it approached CMA‑CGM
Canada and at all material times acted as freight forwarder (transitaire).
[10]
It appears that CMA‑CGM Canada and DHL, in their
respective roles and capacities, have had a business relationship dating back a
number of years.
[11]
In this case, the relationship between DHL and CMA‑CGM
Canada that concerns us began between December 23, 2010, and
February 24, 2011, with a series of bookings (réservations) at the
request of DHL to transport 68 containers from Halifax to Ho Chi Minh
City.
[12]
To confirm all of this, CMA‑CGM Canada issued a
series of booking confirmations (notes de réservations de fret).
[13]
Although DHL sought to prove that its past business
relationships had always been solely with CMA‑CGM Canada and that CMA‑CGM
Canada had not disclosed its role as agent for CMA‑CGM S.A. to DHL, and
although the affiants of the parties were not cross-examined on their
respective affidavits, the Court is not convinced that DHL was truly unaware,
given its experience in and knowledge of the field, that CMA‑CGM S.A. was
ultimately behind the scenes and that CMA‑CGM Canada was acting as an
agent for CMA‑CGM S.A. which, itself, would take care of the issuing of
the bills of lading and the marine transport of the containers.
[14]
If the presence and existence of CMA-CGM S.A. could not clearly
be seen by DHL in the booking confirmations of December 2010, the invoices
subsequently issued in February 2011 unquestionably reveal the presence of
CMA-CGM S.A., even if these same invoices indicate, most likely for the sake of
convenience, that they are payable in Canada to CMA-CGM Canada.
[15]
Furthermore, the following wording of some clauses of the
booking confirmations in which only DHL is identified must be kept in mind in assessing
whether or not DHL was bound by the terms and conditions of the bills of lading
that would later be issued by CMA‑CGM S.A. (referred to in the booking
confirmations and bills of landing as CMA‑CGM) as a result of instructions
given by DHL to CMA‑CGM Canada.
[16]
Under the Clauses part or section on page 3 of the
booking confirmations, we find clauses 6 and 7, which read as follows:
6. Bill of Lading – All
moves referenced in this Booking Confirmation are subject to the terms and
conditions of the carrier issued long form bill of lading. The customer named
on this Booking Confirmation hereby acknowledges and agrees to all the terms
and conditions of the carrier issued long form bill of lading.
7. Booking subject to CMA CGM
terms and conditions available on web site http://www.cma-cgm.com/ProductsServices/Container
Shipping/ShippingGuide/BLClauses.aspx or in any CMA CGM agency.
[17]
In addition, on page 2 of these booking confirmations,
the following notice appears:
Shipment shall be subject to CMA
CGM bill of lading terms and conditions available in any CMA CGM agencies or on
CMA CGM web site: www.cma-cgm.com
It is reminded that if this shipment has been booked on a
“freight collect” basis you guarantee and will be responsible for the payment
of all freight and charges payable by the receiver and that you shall proceed
with the full payment of all outstanding freight and charges should they remain
unpaid for more than three consecutive days after discharge.
[18]
We note that while DHL is identified as forwarding agent in
the booking confirmations and not as “customer”, only its presence is
specifically indicated therein. It is only at the bills of lading stage, pursuant
to instructions from DHL, that HSB is identified as shipper, Tan Mai as
consignee and DHL as forwarding agent (agent transitaire).
[19]
As to the terms and conditions of the bills of lading to
which the booking confirmations refer, it is important to note the following
definitions of the terms “Merchant” and “Holder”:
Merchant
includes the Shipper, Holder, Consignee, Receiver of the Goods, any
Person owning or entitled to the possession of the Goods or of this Bill of
Lading and anyone acting on behalf of any such Person.
Holder
means any Person for the time being in possession of this Bill of Lading
by reason of the consignment of the Goods or the endorsement of this Bill of
Lading or otherwise.
[Emphasis added.]
Analysis
[20]
For the reasons that follow, I am of the view that this motion
by CMA‑CGM S.A. should be granted and the declaratory action brought by
DHL in this matter stayed.
[21]
The Court agrees in principle with a number of the
distinctions that were forcefully argued by DHL.
[22]
In this regard, the Court understands that a forwarding
agent such as DHL may act as principal if, for example, it issues bills of
lading or holds the shipment or interests in it. Here, and the Court agrees,
DHL was acting as an agent of its customer, the shipper HSB.
[23]
The Court also understands that a booking (réservation)
and a booking confirmation (note de réservation) can be viewed as
preliminary contracts to the contract of carriage as such.
[24]
Furthermore, the Court appreciates that DHL submits that it
fulfilled all of its obligations under the preliminary contracts here, namely,
the bookings and booking confirmations, and that the accumulating demurrage
charges fall under what it understands to be the second contract, namely, the
contract of carriage as such.
[25]
However, the clauses set out above, which are found at the
very beginning of the booking confirmations, and which themselves make
reference to the terms and conditions of the bills of lading, are, in the Court’s
view, precisely intended to render moot the splitting up of contracts sought by
DHL.
[26]
As a result, the Court considers that at the booking
confirmation stage, the reference in clause 6 (see paragraph [16], supra)
to the term “customer” necessarily applies to DHL because at that point only
the identity of DHL was known by CMA‑CGM Canada and was identified in the
booking confirmations.
[27]
Therefore, by virtue of this clause, DHL, as the customer,
acknowledges and accepts the terms and conditions of the bills of lading.
[28]
In addition, even if one were to insist that the term
“customer” could not be applied to DHL, clause 7 of the booking
confirmations clearly states that every booking is subject to the terms and
conditions of the bills of lading.
[29]
At no material time during this process did DHL attempt to
speak out against or clarify the effect or scope of clauses 6 and 7
of the booking confirmations, and I cannot agree with DHL’s position that it is
not bound by the bills of lading on the ground that there was no positive and
specific evidence in the record that it had given its consent.
[30]
I find that the wording of clause 6 of the booking
confirmations “… hereby acknowledges and agrees” is sufficiently clear to
secure the consent of DHL. Moreover, there was no evidence of any express and
positive consent of DHL being a normal and required measure in the maritime
industry with regard to the kinds of agreements in play here.
[31]
As to the bills of lading, it should be noted that the
definitions of Holder and Merchant state the following:
Holder
means any Person for the time being in possession of this Bill of Lading
by reason of the consignment of the Goods or the endorsement of this Bill of
Lading or otherwise.
Merchant
includes the Shipper, Holder, Consignee, Receiver of the Goods,
any Person owning or entitled to the possession of the Goods or of this Bill of
Lading and anyone acting on behalf of any such Person.
[Emphasis added.]
[32]
As for the definition of Holder, I find in this case that
at all material times and even at present, DHL must be viewed under this definition
as any Person otherwise (autrement) in possession of the bills of lading.
The fact, according to DHL, that it merely has physical possession of the bills
of lading and is holding them in the name of and for HSB does not change this
finding by the Court. Moreover, it should be noted that DHL’s possession of the
bills of lading allows it to hold them and brandish or rely on them as a means
to extract payment of the freight charges it had earlier paid to CMA‑CGM
Canada at the start of this process.
[33]
Moreover, if we were to agree that DHL is not the holder of
the bills of lading but that it is in fact HSB, then the definition of Merchant
at its very end catches up with DHL.
[34]
As shown, among other things, in the following excerpt from
Q.N.S. Paper Co. v Chartwell Shipping Ltd., [1989] 2 S.C.R. 683, at page
698, the terms or wording constituting a contract take on great significance in
each specific case:
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…
As my colleague observes, in cases of this kind, the issue whether an agent
contracted personally, or solely in the capacity of agent (in which case only
the principal is bound), is a matter of construction of a particular
contract. I leave aside, of course, any custom that may exist at any
particular port or in a particular trade. In this case, the relevant
documents reveal that Chartwell consistently attempted to bring home to
Q.N.S. that its sole responsibility was as an agent. In the body of its
letters, it identified itself as "Managing Operators [i.e., as agents]
for the Charterers" or as acting" On behalf of our
principals", and it consistently signed "as Managing Operators
only". While the simple addition of the word "agent" or its
equivalent following a signature can easily be read as a mere description of
the signatory, that cannot be said of "as agent only". Those words
do more. They are obviously directed to limiting or [page699] explaining a
liability, and not merely to describing the person signing or his authority
to do so; see Universal Steam Navigation Co. v. James McKelvie & Co.,
[1923] A.C. 492 (H.L.), and esp. at p. 500, per Lord Sumner. What
particularly impresses in the present case is Chartwell's insistent
repetition in its correspondence that it is acting as an agent and its
repeated signature "as agent only". [Emphasis added.]
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Ainsi que le fait remarquer ma collègue, dans des affaires de ce genre, la
question de savoir si un mandataire a contracté en son propre nom ou en
qualité de mandataire uniquement (auquel cas seul le mandant est lié) relève
de l'interprétation du contrat en cause. Je ne tiens pas compte, évidemment,
des coutumes pouvant exister dans tel ou tel port ou dans une industrie donnée.
En l'espèce, il ressort des documents pertinents que Chartwell a constamment
essayé de faire comprendre à Q.N.S. qu'elle engageait sa responsabilité
uniquement en tant que mandataire. Dans le corps de ses lettres, elle se
présentait comme [TRADUCTION] "exploitante-gérante [c.-à-d., comme
mandataire] pour les affréteurs" ou comme agissant "au nom de nos
mandants", et elle a toujours signé [TRADUCTION] "en qualité
d'exploitante-gérante uniquement". Quoique le simple ajout du mot
"mandataire" ou [page699] de son équivalent après la signature
puisse facilement s'interpréter comme une simple description du signataire,
il n'en va pas de même de l'expression "en qualité de mandataire
uniquement". Ces mots font davantage. Ils visent manifestement à limiter
ou à expliquer la responsabilité et non pas simplement à décrire le
signataire ou son pouvoir de signer; voir Universal Steam Navigation Co. v.
James McKelvie & Co., [1923] A.C. 492 (H.L.), et en particulier, à la p.
500, les motifs de lord Sumner. Ce qui frappe particulièrement en l'espèce
est l'insistance avec laquelle Chartwell a répété dans sa correspondance
qu'elle agissait en tant que mandataire et le fait qu'elle a régulièrement
signé [TRADUCTION] "en qualité de mandataire uniquement". (Je
souligne.)
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[35]
In this case the review at paragraph [25] et seq. of
the relevant clauses indicates to us that DHL must be held liable.
[36]
We note, without it being determinative here since each
case turns on its own facts, that in two decisions of this Court, a nearly identical
definition of Merchant led the Court to conclude that the forwarding agent fell
within that definition (see Encan Liquidation General Canada Inc.
v Transintra Canada, 2000 CarswellNat 2989, and CTO International
Ltd. v Intercon Freight (1992), 56 F.T.R. 94).
[37]
Lastly, as previously noted, and as indicated at
paragraph 14 of DHL’s statement of claim in the present matter and at
paragraph 31 of the Tassone affidavit submitted by DHL, the plaintiff
acknowledges that it has control over the bills of lading to the extent that it
holds them and may possibly offer them for sale. Such a position leads the Court
to conclude that DHL is also a holder of the said bills of lading.
Paragraphs 14 and 31 read as follows:
14.
HSB International has failed to pay in full to Plaintiff
[DHL] the balance of freight and overland charges owed and in the exercise of
its freight forwarding agent’s right of detention / lien pursuant to
the laws of the Province of Québec, Plaintiff withheld the delivery of the
aforesaid ocean bills of lading from HSB International until payment in full
was received.
31. I do not dispute the
assertions of Ms Poirier in paragraphs 17 through to 29 of her
Affidavit, save that DHL Canada has no contractual relationship with “Tan Mai”,
the consignee, and has no claim against this company; DHL Canada reserves its
right to ask this Court to approve by judicial sale the transmission of the
bills of lading to the highest bidder; thus far, Tan Mai has been totally
unresponsive to any overture by DHL Canada to engage in settlement
negotiations;
[38]
As noted at paragraph [1], supra,
subsection 30(2) of the terms and conditions of the bills of lading
contains the following exclusive jurisdiction clause:
30. LAW AND JURISDICTION
…
(2) Jurisdiction
All actions against Carrier [CMA CGM] under the
contract of Carriage evidenced by this Bill of Lading shall be brought before
the “Tribunal de Commerce de MARSEILLE” and no other Court shall have
jurisdiction with regards to any such action. Actions against the Merchant under
the contract of Carriage evidenced by this Bill of Lading may be brought before
the “Tribunal de Commerce de MARSEILLE” or, in Carrier’s sole
discretion, in another court of competent jurisdiction. [Emphasis in original.]
[39]
Like CMA‑CGM S.A., I find that the DHL’s action in
this matter falls within the scope of this clause and that DHL has not established
– to the extent our Court even has jurisdiction to rule on this point – that Marseille
was otherwise a forum non convenient within the meaning of the case law presented
by DHL. In any event, DHL did not press this point in its oral argument.
[40]
Thus, the motion brought by CMA-CGM S.A. will be
granted as follows, with costs, which the Court fixes at $1,640. The Court
stays the action brought by the plaintiff, DHL, in this case in favour of the
Tribunal de Commerce de MARSEILLE.
“Richard Morneau”
Certified
true translation
Sebastian
Desbarats, Translator
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