Docket: T-1376-14
Citation:
2017 FC 460
Ottawa, Ontario, May 8, 2017
PRESENT: Madam Prothonotary Mireille Tabib
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BETWEEN:
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CERTAIN
UNDERWRITERS AT LLOYD'S AND SOLINE TRADING LTD.
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Plaintiffs
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and
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MEDITERRANEAN
SHIPPING COMPANY S.A.
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Defendant
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and
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4103831 CANADA
INC. (OPERATING AND DOING BUSINESS UNDER THE TRADE NAME OF TRANS SALONIKIOS
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Third Party
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ORDER AND REASONS
[1]
The Third Party, 4103831 Canada Inc., d.b.a.
Trans Salonikios (“Trans Salonikios”), makes this motion to dismiss the third party
claim made against it by Mediterranean Shipping Company S.A. (“MSC”) on the
basis that it discloses no reasonable cause of action over which this Court has
jurisdiction. For the reasons that follow, the motion will be granted.
[2]
The following are the facts set out in the
pleadings and over which there is no contestation.
[3]
The Defendant, MSC, is a transportation company
offering transportation of goods by sea. In June 2013, pursuant to a contract
of carriage evidenced by a bill of lading, MSC agreed to carry a container said
to contain frozen shrimp from the Port of Guayaquil, Ecuador, to the Port of
Montreal, Canada.
[4]
The container was discharged in Montreal on June
26, 2013 and stored at Termont Terminal’s yard in Montreal, awaiting pick-up.
On that same date, Trans Salonikios, a trucking company, showed up at Termont
to take possession of the container. Termont released the cargo to Trans
Salonikios. However, Trans Salonikios had not been mandated by the consignee
of the cargo, the Plaintiff Soline Trading Ltd., but had either unlawfully
obtained the release code for the purpose of stealing the cargo or had been
dispatched by person or persons unknown who had unlawfully obtained the release
code. The cargo was never delivered to its rightful owner. The Plaintiff
therefore sues MSC, as carrier, holding it liable for wrongful delivery of the
cargo.
[5]
MSC denies that it is liable for the loss. It
alleges – although the Plaintiff vehemently contests this – that the contract
of carriage was at an end the minute the cargo was discharged and placed in the
possession of Termont. Nevertheless, MSC has taken a third party action against
Trans Salonikios, seeking indemnity against it for any judgment that might be
rendered against MSC in favour of the Plaintiff, on the basis that the loss
occurred as a result of the unlawful and negligent actions of Trans Salonikios.
[6]
Trans Salonikios asserts that this Court has no
jurisdiction over the third party claim made against it by MSC. MSC argues that
a determination of the Court’s jurisdiction is premature at this stage of the
proceedings and that it is not plain and obvious that this Court does not have
jurisdiction pursuant to its general jurisdiction over claims arising by virtue
of Canadian Maritime Law pursuant to section 22(1) of the Federal Courts Act,
RSC 1985, c. F-7.
[7]
The Plaintiffs take no position on the
jurisdictional issues, but caution that the Court should not, in determining
the motion, make any determination of fact that would affect their claim
against MSC and might be binding on the trial judge. In particular, the
Plaintiffs urge that the Court should not purport to determine the merits of
MSC and Trans Salonikios’ arguments to the effect that the contract of carriage
by sea entered into between MSC and the cargo owners had come to an end at the
time the cargo was released to Trans Salonikios.
[8]
I do not need to determine that issue, as I am
satisfied that the Court has no jurisdiction over any claim for indemnity
brought by MSC against Trans Salonikios, whether or not the contract of
transportation was at an end.
[9]
None of the parties to this litigation allege
the existence of a contractual relationship between Trans Salonikios on the one
hand, and either of the Plaintiffs or MSC on the other hand. However, counsel
from MSC insisted at the hearing on the following factual circumstances, which
he says were established at discoveries:
•
that Trans Salonikios has recognized that it had
a duty to MSC to return the container empty after it had been delivered and
unloaded by its recipient and that it would be liable to MSC if it failed to do
so;
•
that Termont Terminal acts as agent for MSC in
releasing cargo to truckers authorized to receive it;
•
that the container in which the cargo was stowed
was a refer container box, which Termont was required to keep in a designated
area and which it had to plug-in and monitor, and that MSC could be held liable
to the cargo owner if Termont had failed in its duty to do so; and
•
that, as is required by modern methods of sea
transportation, of logistics of transit and of movement of containerized cargo,
there is a great degree of integration between the operations of Termont and
the operations of Trans Salonikios. Truckers like Trans Salonikios must be
vetted and certified by Termont; they have access to the terminal’s computer
system to track the availability of containers and to ensure that they have the
correct equipment for pickup.
[10]
No evidence of these facts has been adduced on
this motion. Nevertheless, I have taken them into consideration as if they were
allegations in the pleadings, and will proceed to consider whether, if all
alleged facts are taken as proven, it is plain and obvious that this Court has
no jurisdiction to hear the third party claim.
[11]
Any claim against Trans Salonikios in this
matter, whether it had been made directly by the Plaintiffs against Trans
Salonikios or by way of MSC’s third party claim for indemnity or contribution,
can only be based in tort or extra-contractual liability. That liability would
be based on Trans Salonikios’ role as the trucker mandated by thieves to pick
up the cargo from the marine terminal, or as a thief stealing directly from the
terminal. Such a cause of action does not pertain to Canadian Maritime Law and
does not, by any stretch of the imagination, relate to maritime or admiralty
matters.
[12]
MSC argues that its third party claim, being
based on the theft of cargo from the sea terminal, is indistinguishable from the
claim considered in the seminal case of ITO - International Terminal
Operators v Miida Electronics Inc., [1986] 1 S.C.R. 752. That claim was for
theft of cargo stored at a sea terminal and the Supreme Court of Canada found that
it was governed by Canadian Maritime Law and within the jurisdiction of the
Federal Court. In making that determination, the Supreme Court found that:
21. (…)
It is clear, in my
view, that such incidental storage by the carrier itself or by a third party
under contract to the carrier is also a matter of maritime concern by virtue of
the “close, practical relationship of the terminal operation to the performance
of the contract of carriage” (per Le Dain J. in the Court of Appeal). It
may then be concluded that cargo handling and incidental storage before
delivery and before the goods pass from the custody of a terminal operator
within the port area is sufficiently linked to the contract of carriage by sea
to constitute a maritime matter within the ambit of Canadian maritime law, as
defined in s. 2 of the Federal Court Act.
[13]
MSC further argues that the present
circumstances meet the “three significant factors” that defined the maritime
nature of the case in ITO:
22. At the
risk of repeating myself, I would stress that the maritime nature of this case
depends upon three significant factors. The first is the proximity of the terminal
operation to the sea, that is, it is within the area which constitutes the port
of Montreal. The second is the connection between the terminal operator’s
activities within the port area and the contract of carriage by sea. The third
is the fact that the storage at issue was short-term pending final delivery to
the consignee. In my view, it is these three factors, taken together, which characterize
this case as one involving Canadian maritime law.
[14]
However, the cause of action asserted here is against
Trans Salonikios, a trucker, while the causes of action in ITO were
asserted against the ocean carrier and the terminal operator. MSC’s claim
against Trans Salonikios is not a claim based on the execution of a contract of
carriage of goods by sea or a claim based on the duties and liabilities of the
operator of a sea terminal. What MSC puts at issue in its claim against Trans
Salonikios is not MSC’s obligations as a ship operator or as a carrier of goods
by sea, or the obligations of Termont as the operator of a sea terminal, but
strictly Trans Salonikios’ obligations as a trucker or its conduct as a thief.
[15]
The situation of Trans Salonikios as a land
carrier whose negligence causes damage to goods that had previously been
carried by sea is much more similar to that of the truckers in Matsuura
Machine Corp. v Hapag Lloyd AG, [1997] FCJ No. 360, Sio Export Trading
Co. v The “Dart Europe”, [1984] 1 FC 256 and Marley Co. v Cast North
America (1983) Inc., [1995] FCJ No 489 than to that of the terminal
operator in ITO.
[16]
It was determined in Matsuura that the
transportation by a land carrier, even if under contract to the ocean carrier,
and even where the land carrier’s part in the carriage forms part of a
continuous movement, is not so “integrally connected to maritime matters as to
be legitimate Canadian Maritime Law within federal legislative competence”.
[17]
In The “Dart Europe”, negligence of the
land carrier was also alleged. There, the packaging of a machine carried in an
open top container had been damaged during sea transportation. The ocean
carrier had arranged for the machine and container to be sent to a repair shop
in Dorval to be repackaged and properly secured prior to continuing with the
contract of carriage. The machine was damaged while being carried back from the
repair shop to the port of Montreal by a trucker hired by the ocean carrier. The
Federal Court held that “the land transport operation undertaken by Godin from
the Dorval repair shop to the Port of Montreal cannot be considered so “closely
connected” to the voyage by sea as to be “part and parcel” of the marine
activities essential to the carriage of goods by sea.”
[18]
Finally, in Marley Co., where a rail
carrier’s negligence caused damage to a cargo being transported pursuant to a
through bill of lading, the Court found it had no jurisdiction over a claim
against the rail carrier:
19. (…) It is
not because a contract of carriage by rail or by land is entered into in the
context of a through bill of lading, a portion of which calls for carriage by
sea, that the former contracts necessarily fall within the jurisdiction of this
Court. I am certainly not prepared to accept that a contract to carry goods by
rail or by truck in the United States, Canada or Europe is within the maritime
jurisdiction of this Court simply because they are part of the ongoing movement
of a container between Shiller Park, Illinois, to Tiel, Holland.
(…)
21. In my view, in no way can it be
argued that Soo Line’s activities are, in the sense that the terminal
operator’s activities in ITO were, part and parcel of the contract of carriage
by sea.
[19]
In the circumstances of this case, where Trans
Salonikios is not even alleged to be contractually bound to any party to the
contract of carriage by sea, it is even clearer that its activities are not
part and parcel of the carriage by sea and that an action against it does not
fall within the maritime jurisdiction of this Court.
[20]
MSC argues that the case at issue is a matter of
misdelivery. It submits that the proper delivery of containers
is, pursuant to modern methods of transport logistics and movement of
containerized cargo, handled by terminal operators on
behalf of shipping lines, and requires intricate logistical integration
between the terminal operator’s activities and the trucker’s activities. These facts are at play in this litigation, and the
Court must accordingly reassess the limits of Canadian Maritime Law in light of
evolving technology and practices.
[21]
MSC’s argument misses the point. It has already
been recognized that terminal operators’ activities are integrally connected to
maritime matters and that their duties towards shipping lines and cargo owners are
thus governed by Canadian Maritime Law; that would include terminal operators’
duties to deliver the container to the proper consignee. The integration of the
logistics between the terminal operator and truckers does not bring the matter
of the trucker’s activities within federal jurisdiction by association. The
cause of action asserted by MSC against Trans Salonikios in this matter may
arise because the terminal operator failed in its duties to ensure proper
delivery, but it is not founded on the breach of the terminal operator’s duties.
It is founded solely on the extra-contractual responsibility of Trans
Salonikios, as trucker or thief, towards MSC.
[22]
The integration of activities and logistics
between Termont and Trans Salonikios is part of the res gestae in this
matter, but it does not modify or affect the legal relationship between MSC as
ocean carrier and Trans Salonikios as trucker. That relationship remains, as
always, a matter governed by the law of the provinces.
[23]
Finally, MSC argues that the Federal Court
should hear the third party claim as a matter of judicial economy, as it would
be wasteful and give rise to the risk of contradictory judgements if the third
party claim were determined in a different court when it involves the same
facts and evidence. This argument has already been considered and rejected by
this Court in The “Dart Europe”, above:
12. I am
aware, of course, of the desirability of keeping all the parties concerned with
the outcome of an action as parties to the action. But, however desirable it
may be to have the land carrier joined with the cargo owner, the shipper, the
ocean carrier, the vessel and the consignee, in the same action, especially
where it is alleged that the land carrier is the negligent party, still
desirability or expediency cannot clothe a court with a jurisdiction it does
not otherwise possess. Both the imagination of this Court and the Constitution
of this country would have to be stretched to the breaking point in order to
consider a collision on a highway within a province to be an admiralty matter
coming under federal jurisdiction.
[24]
MSC’s third party claim against Trans Salonikios
is accordingly dismissed, with costs in favour of Trans Salonikios.
[25]
The determination of this motion did not turn on
the determination of whether or not the contract of carriage between the cargo
owners and MSC was at an end, and none of the arguments of MSC or of Trans
Salonikios depended or relied on such a determination. As such, the Plaintiffs’
concerns and insistence that MSC and Trans Salonikios agree that the Court’s
findings could not bind the trial Judge were without foundation. The
Plaintiffs’ participation in this motion was unnecessary. Costs will
accordingly not be awarded against or in favour of the Plaintiffs.
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