Docket: T-1376-14
Citation:
2017 FC 893
Ottawa, Ontario, October 6, 2017
PRESENT: The Honourable Mr. Justice LeBlanc
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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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REASONS FOR ORDER AND ORDER
I.
Introduction
[1]
This is an appeal made pursuant to rule 51 of
the Federal Courts Rules, SOR/98-106 [the Rules], of an order of
Prothonotary Mireille Tabib, dated May 8, 2017 [the Order], dismissing the
Defendant’s third-party claim against 4103831 Canada Inc. [Trans Salonikios] on
the ground that this Court lacks jurisdiction to entertain it.
II.
Context
[2]
The Defendant, Mediterranean Shipping Company
S.A. [MSC], is a marine carrier. In June 2013, it agreed in a contract
evidenced by a bill of landing upon which the Plaintiff, Soline Trading Ltd.
was designated as the consignee, to carry a container said to contain a cargo
of 1,000 cartons of frozen shrimps from the port of Guayaquil, in Ecuador, to
the Port of Montreal.
[3]
On June 26, 2013, the container was discharged
at the Port of Montreal and stored at Termont Terminal’s yard, awaiting
pick-up. Termont is a stevedoring company and terminal operator. The key
allegations that form the basis of the Plaintiffs’ claim against MSC were
summarized as follows by Prothonotary Tabib:
[4] […] 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.
[4]
MSC denies any liability for the wrongful
delivery of the cargo, claiming that the contract of carriage was at an end the
minute the cargo was discharged in Montreal and placed in the possession of
Termont. As eluded to at the outset of these Reasons, MSC also seeks to be
indemnified by Trans Salonikios, through a third party claim, in case any
judgment is rendered against it in favour of the Plaintiffs on the basis that
the loss incurred by the wrongful delivery of the cargo was the result of the
unlawful and negligent actions of Trans Salonikios.
[5]
Trans Salonikios moved to have MSC’s third party
claim struck out for want of jurisdiction. It contends that this Court lacks
jurisdiction over that claim on the basis that its maritime law jurisdiction
does not extend to land transportation of goods carried by sea, especially
where, as is the case here, none of the parties allege the existence of a
contractual relationship between Trans Salonikios and either of the Plaintiffs
or MSC.
[6]
MSC says that it is not “plain
and obvious” that the Court lacks jurisdiction to entertain its third
party claim pursuant to its general jurisdiction over claims arising by virtue
of Canadian maritime law as provided for under paragraph 22(1) of the Federal
Courts Act, RSC 1985, c F-7 [the Act].
[7]
In support of its contention, MSC urged
Prothonotary Tabib to consider a number of factual circumstances arising out of
the discoveries held so far in this case. These circumstances are, as
summarized by Prothonotary Tabib, at para 9 of her Order:
•
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 reefer 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.
[8]
Although no evidence of these facts was adduced
in the motion’s materials, Prothonotary Tabib nevertheless considered them as
if they were allegations in the pleadings. Taking these facts and all alleged
facts in the pleadings as proven, she concluded that it is plain and obvious
that this Court has no jurisdiction to hear the third party claim. Her
rationale for so concluding is found at paragraph 11 of the Order:
[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.
[9]
Prothonotary Tabib dismissed MSC’s contention
that its claim against Trans Salonikios, being based on the theft of cargo from
a sea terminal, is indistinguishable from the claim considered in ITO –
International Terminal Operators v Miida Electronics Inc, [1986] 1 S.C.R. 752
[ITO], noting that the cause of action in ITO was asserted
against the ocean carrier and the terminal operator, not, as is the case here,
against a land carrier. She further held:
[14] […].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.
[10]
As such, Prothonotary Tabib found that the
present set of circumstances was much closer to that of the truckers in Matsuura
Machiner Corp v Hapag Lloyd AG, [1997] FCJ No 360; Sio Export Trading Co
v The “Dart Europe”, [1984] 1 FC 256 [The
“Dart Europe”] and Marley Co v Cast North
America (1983) Inc (1995), 94 FTR 45 [Marley] than that of the
terminal operator in ITO. These cases stand for the premise that
transportation by land carriers is not “so integrally
connected to”, nor “closely connected to”
the voyage by sea as to fall under Canadian maritime law. She underscored the
fact that it was even clearer here that Trans Salonikios’ activities in the
present case “are not part and parcel of the carriage
by sea and that an action against it does not fall within the maritime
jurisdiction of the Court” since, contrary to what was the case in these
three matters, Trans Salonikios is “not even alleged to
be contractually bound to any part to the contract of carriage by sea”
(Order, at para 19).
[11]
She then dealt with two further arguments raised
by MSC in response to Trans Salonikios’ motion to strike. First, she dealt with
MSC’s contention that the present case being a matter of misdelivery of
containerized cargo, the limits of Canadian Maritime Law, and, thereby, those
of this Court’s maritime law jurisdiction, need to be reassessed in light of
evolving technology and practices in the transport logistics and movement of
such cargo which, these days, require intricate logistical integration between
the terminal operator and the trucker’s activities.
[12]
Prothonotary Tabib held that this argument was “miss[ing] the point” as the integration of the
logistics between terminal operators and truckers did not bring the matter of
the trucker’s activities within federal jurisdiction “by
association”:
[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.
[13]
Second, Prothonotary Tabib addressed MSC’s
argument regarding judicial economy and the risk of contradictory judgments.
Citing this Court’ judgment in The “Dart Europe”,
she concluded that the desirability of keeping all the parties concerned with
the outcome of an action - the land carrier, the cargo owner, the shipper, the
ocean carrier, the vessel and the consignee - as parties to the action cannot
clothe the Court with a jurisdiction that it does not otherwise possess.
[14]
MSC has essentially made the same arguments on
appeal.
[15]
Both before Prothonotary Tabib and in this
appeal, the Plaintiffs have taken no position but have cautioned that the Court
should refrain from making any determination of fact that would affect their
claim against MSC, in particular when it comes to MSC’s contention that the
contract of carriage by sea it entered into with the cargo owners, came to an
end at the time the cargo was discharged and placed in possession of Termont
Terminal.
III.
Issue and Standard of Review
[16]
In order to strike MSC’s third party claim,
Prothonotary Tabib had to be satisfied that the Court’s lack of jurisdiction is
“plain and obvious” or “beyond
reasonable doubt” (Sokolowska v Canada, 2005 FCA 29, at paras
14-15 [Sokolowska]; Hodgson v Ermineskin Indian Band No 942,
[2000] FCJ No 313 (FCTD) at para 10; Dumont v Canada (Attorney General),
[1990] 1 S.C.R. 279, at p 280).
[17]
Recently, in Hospira Healthcare Corporation v
Kennedy Institute of Rheumatology, 2016 FCA 215 [Hospira], a
five-member panel of the Federal Court of Appeal abandoned the standard of
review applicable to discretionary orders made by prothonotaries enunciated in Canada
v Aqua-Gem Investments Ltd, [1993] 2 FC 425, 149 NR 273 [Aqua-Gem]
and replaced it by the standard applicable to first instance decisions set out
by the Supreme Court of Canada in Housen v Nikolaisen, [2002] 2 S.C.R. 235
[Housen].
[18]
By adopting the Housen standard, the
Federal Court of Appeal ruled that discretionary orders of prothonotaries “should only be interfered with when such decisions are
incorrect in law or are based on a palpable and overriding error in regard to
the facts” (Hospira, at para 64). In particular, it held that the
supervisory role of judges over prothonotaries under Rule 51 no longer requires
that a distinction be made between discretionary orders that are vital to the
outcome of a case and those that are not and that orders that are held to be
vital to the outcome of a case be subject to a de novo hearing (Hospira, at para 64).
[19]
Here, there is no doubt – and this is not
disputed by the parties - that Prothonotary Tabib applied the correct legal
test in asking herself whether it is plain and obvious that this Court has no
jurisdiction to hear MSC’s third party claim against Trans Salonikios (Order,
at para 10). The issue to be resolved in this appeal then is whether the answer
she gave to that question is legally defensible. In my view, it is.
IV.
Analysis
[20]
The Federal Court has been established pursuant
to section 101 of the Constitution Act, 1867, for the “better Administration of the Laws of Canada”. Unlike
the jurisdiction of the provincial superior courts, which is inherent and
general, the Federal Court derives its authority from statutes (R v Thomas
Fuller Const Co (1958) Ltd, [1980] 1 S.C.R. 695, at p 713; Ordon Estate v
Grail, [1998] 3 S.C.R. 437, at para 46 [Ordon Estate]; Canada
(Attorney General) v Telezone Inc, 2010 SCC 62, at para 43).
[21]
It is now settled law that in order to determine
whether this Court has jurisdiction over a subject matter, the following test,
as first set out by the Supreme Court of Canada in Quebec North Shore Paper
Co v Canadian Pacific Ltd, [1977] 2 S.C.R. 1054 [Quebec North Shore]
and McNamara Construction et al., v The Queen, [1977] 2 S.C.R. 654, and
then later on, notably, in ITO, has to be met:
a)
There must be a statutory grant of jurisdiction
by Parliament;
b)
There must be an existing body of federal law
which is essential to the disposition of the case and which nourishes the
statutory grant of jurisdiction; and
c)
The law on which the case is based must be a “law of Canada” as these terms are used in section 101
of the Constitution Act, 1867.
[22]
MSC claims that paragraph 22(1) of the Act
provides the statutory grant of jurisdiction over its third party claim as it
confers on this Court concurrent jurisdiction, between subjects and subjects,
in “all cases in which a claim for relief is made or a
remedy is sought under or by virtue of Canadian maritime law”. It says
that its claim against Trans Salonikios falls within the definition of “Canadian maritime law” as set out at paragraph 2(1)
of the Act, which encompasses two categories of Canadian maritime law: (i) the
law that was administered by the Exchequer Court of Canada on its Admiralty
side by virtue of the Admiralty Act or any other statute, and (ii) the
law that would have been so administered if that court had had on its Admiralty
side unlimited jurisdiction in relation to maritime and admiralty matters (see
also: ITO, at p 769).
[23]
It insists that paragraph 22(1) of the Act is to
be given “a broad and purposeful interpretation so as
to include all claims which stem from a contract relating to the carriage of
goods by sea” (Pantainer Ltd v 996660 Ontario, [2000] FCJ No 334
(QL), 183 FTR 211 , at para 100 [Pantainer]) and that the words “maritime” and “admiralty”
of the definition of “Canadian maritime law” are
to be interpreted “within the modern context of
commerce and shipping” (ITO, at p 774; Ordon Estate, at
para 24).
[24]
MSC underscores the fact that the second part of
that definition, as held in ITO, “was adopted
for the purpose of assuring that Canadian maritime law would include unlimited
jurisdiction in relation to maritime and admiralty matters” (ITO,
at p 774). Hence, a subject-matter will be within Canadian maritime law, and
therefore within this Court’s jurisdiction, if it is “so
integrally connected to maritime matters as to be legitimate Canadian maritime
law within federal legislative competence” (ITO, at p 774).
Tortuous activities that are sufficiently connected with navigation and
shipping are one such example of the broad scope of what the definition of
Canadian maritime law encompasses (Whitbread v Walley, [1990] 3 SCR
1273, at p 1290 [Whitbread]; Ruby Trading S.A. v Parsons,
[2001] 2 FC 174 (FCA) at paras 28-29 [Rudy Trading]). It submits,
therefore, that the second part of the test set out in ITO is satisfied
as Canadian maritime law is essential to the disposition of the third-party
claim and nourishes the statutory grant of jurisdiction.
[25]
As to the third part of that test, MSC contends
that Canadian maritime law is a “law of Canada”
within the meaning of section 101 of the Constitution Act, 1867 as it
falls under Parliament’s legislative authority over navigation and shipping
pursuant to section 91(10) of that Act.
[26]
MSC claims that Prothonotary Tabib
mischaracterized the third party action as being a matter of trucking governed
by provincial law as opposed to a matter of theft of a container while at port.
It submits that in so doing, Prothonotary Tabib failed to properly appreciate
the modern context of navigation and shipping as evidenced by the fact Trans
Salonikios’ activities are exclusively focussed on the logistics of container
movement and delivery of same in the context of shipping and port activities,
and are, as a result, integrally connected to the operations of Termont
Terminal. This is further evidenced, it submits, by the fact that, as any other
trucker involved in the business of movement of cargo stored at a port
terminal, it has to be vetted and certified by Termont to access cargo stored
at its terminal and is under a legal duty to return the container empty at said
terminal once the container has been delivered and unloaded.
[27]
Subsection 22(1) of the Act, which has to be
read together with the definition of “Canadian maritime
law” found at subsection 2(1) of the Act, is the Court’s main statutory
grant of maritime jurisdiction. Subsection 22(2) lists a number of claims to
come within that jurisdiction. However, as the wording of that provision
suggests, this list of matters is non-exhaustive so that a claim may come
within the Court’s jurisdiction even though it is not mentioned in that
subsection (see also: General MPP Carriers Ltd. v SCL
Bern AG, 2014 FC 571, at para 46).
[28]
Subsections 22(1) and (2) and the definition of “Canadian maritime law”, read as follows:
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Navigation
and shipping
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Navigation
et marine marchande
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22 (1) The
Federal Court has concurrent original jurisdiction, between subject and
subject as well as otherwise, in all cases in which a claim for relief is
made or a remedy is sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within the class of subject
of navigation and shipping, except to the extent that jurisdiction has been
otherwise specially assigned.
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22 (1) La
Cour fédérale a compétence concurrente, en première instance, dans les cas —
opposant notamment des administrés — où une demande de réparation ou un
recours est présenté en vertu du droit maritime canadien ou d’une loi
fédérale concernant la navigation ou la marine marchande, sauf attribution
expresse contraire de cette compétence.
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Maritime
jurisdiction
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Compétence
maritime
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(2) Without
limiting the generality of subsection (1), for greater certainty, the Federal
Court has jurisdiction with respect to all of the following:
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(2) Il
demeure entendu que, sans préjudice de la portée générale du paragraphe (1),
elle a compétence dans les cas suivants :
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(a) any
claim with respect to title, possession or ownership of a ship or any part
interest therein or with respect to the proceeds of sale of a ship or any
part interest therein;
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a) une
demande portant sur les titres de propriété ou la possession, en tout ou en
partie, d’un navire ou sur le produit, en tout ou en partie, de la vente d’un
navire;
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(b) any
question arising between co-owners of a ship with respect to possession,
employment or earnings of a ship;
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b) un
litige entre les copropriétaires d’un navire quant à la possession ou à
l’affectation d’un navire ou aux recettes en provenant;
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(c) any
claim in respect of a mortgage or hypothecation of, or charge on, a ship or
any part interest therein or any charge in the nature of bottomry or
respondentia for which a ship or part interest therein or cargo was made
security;
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c) une
demande relative à un prêt à la grosse ou à une hypothèque, un privilège ou
une sûreté maritimes grevant tout ou partie d’un navire ou sa cargaison;
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(d) any
claim for damage or for loss of life or personal injury caused by a ship
either in collision or otherwise;
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d) une
demande d’indemnisation pour décès, dommages corporels ou matériels causés
par un navire, notamment par collision;
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(e) any
claim for damage sustained by, or for loss of, a ship including, without
restricting the generality of the foregoing, damage to or loss of the cargo
or equipment of, or any property in or on or being loaded on or off, a ship;
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e) une
demande d’indemnisation pour l’avarie ou la perte d’un navire, notamment de
sa cargaison ou de son équipement ou de tout bien à son bord ou en cours de
transbordement;
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(f) any
claim arising out of an agreement relating to the carriage of goods on a ship
under a through bill of lading, or in respect of which a through bill of
lading is intended to be issued, for loss or damage to goods occurring at any
time or place during transit;
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f) une
demande d’indemnisation, fondée sur une convention relative au transport par
navire de marchandises couvertes par un connaissement direct ou devant en
faire l’objet, pour la perte ou l’avarie de marchandises en cours de route;
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(g) any
claim for loss of life or personal injury occurring in connection with the
operation of a ship including, without restricting the generality of the
foregoing, any claim for loss of life or personal injury sustained in
consequence of any defect in a ship or in her apparel or equipment, or of the
wrongful act, neglect or default of the owners, charterers or persons in
possession or control of a ship or of the master or crew thereof or of any
other person for whose wrongful acts, neglects or defaults the owners,
charterers or persons in possession or control of the ship are responsible,
being an act, neglect or default in the management of the ship, in the
loading, carriage or discharge of goods on, in or from the ship or in the
embarkation, carriage or disembarkation of persons on, in or from the ship;
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g) une
demande d’indemnisation pour décès ou lésions corporelles survenus dans le
cadre de l’exploitation d’un navire, notamment par suite d’un vice de
construction dans celui-ci ou son équipement ou par la faute ou la négligence
des propriétaires ou des affréteurs du navire ou des personnes qui en
disposent, ou de son capitaine ou de son équipage, ou de quiconque engageant
la responsabilité d’une de ces personnes par une faute ou négligence commise
dans la manoeuvre du navire, le transport et le transbordement de personnes
ou de marchandises;
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(h) any
claim for loss of or damage to goods carried in or on a ship including,
without restricting the generality of the foregoing, loss of or damage to
passengers’ baggage or personal effects;
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h) une
demande d’indemnisation pour la perte ou l’avarie de marchandises transportées
à bord d’un navire, notamment dans le cas des bagages ou effets personnels
des passagers;
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(i) any
claim arising out of any agreement relating to the carriage of goods in or on
a ship or to the use or hire of a ship whether by charter party or otherwise;
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i) une
demande fondée sur une convention relative au transport de marchandises à
bord d’un navire, à l’usage ou au louage d’un navire, notamment par
charte-partie;
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(j) any
claim for salvage including, without restricting the generality of the
foregoing, claims for salvage of life, cargo, equipment or other property of,
from or by an aircraft to the same extent and in the same manner as if the
aircraft were a ship;
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j) une
demande d’indemnisation pour sauvetage, notamment pour le sauvetage des
personnes, de la cargaison, de l’équipement ou des autres biens d’un aéronef,
ou au moyen d’un aéronef, assimilé en l’occurrence à un navire;
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(k) any
claim for towage in respect of a ship or of an aircraft while the aircraft is
water-borne;
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k) une
demande d’indemnisation pour remorquage d’un navire, ou d’un aéronef à flot;
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(l) any
claim for pilotage in respect of a ship or of an aircraft while the aircraft
is water-borne;
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l) une
demande d’indemnisation pour pilotage d’un navire, ou d’un aéronef à flot;
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(m) any claim
in respect of goods, materials or services wherever supplied to a ship for
the operation or maintenance of the ship, including, without restricting the
generality of the foregoing, claims in respect of stevedoring and lighterage;
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m) une
demande relative à des marchandises, matériels ou services fournis à un
navire pour son fonctionnement ou son entretien, notamment en ce qui concerne
l’acconage et le gabarage;
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(n) any
claim arising out of a contract relating to the construction, repair or
equipping of a ship;
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n) une
demande fondée sur un contrat de construction, de réparation ou d’équipement
d’un navire;
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(o) any
claim by a master, officer or member of the crew of a ship for wages, money,
property or other remuneration or benefits arising out of his or her
employment;
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o) une
demande formulée par un capitaine, un officier ou un autre membre de
l’équipage d’un navire relativement au salaire, à l’argent, aux biens ou à
toute autre forme de rémunération ou de prestations découlant de son
engagement;
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(p) any
claim by a master, charterer or agent of a ship or shipowner in respect of
disbursements, or by a shipper in respect of advances, made on account of a
ship;
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p) une
demande d’un capitaine, affréteur, mandataire ou propriétaire de navire
relative aux débours faits pour un navire, et d’un expéditeur concernant des
avances faites pour un navire;
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(q) any
claim in respect of general average contribution;
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q) une
demande relative à la contribution à l’avarie commune;
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(r) any
claim arising out of or in connection with a contract of marine insurance;
and
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r) une
demande fondée sur un contrat d’assurance maritime ou y afférente;
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(s) any
claim for dock charges, harbour dues or canal tolls including, without
restricting the generality of the foregoing, charges for the use of
facilities supplied in connection therewith.
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s) une
demande de remboursement des droits de bassin, de port ou de canaux,
notamment des droits perçus pour l’utilisation des installations fournies à
cet égard.
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Canadian
maritime law means the law that was administered
by the Exchequer Court of Canada on its Admiralty side by virtue of the
Admiralty Act, chapter A-1 of the Revised Statutes of Canada, 1970, or any
other statute, or that would have been so administered if that Court had had,
on its Admiralty side, unlimited jurisdiction in relation to maritime and
admiralty matters, as that law has been altered by this Act or any other Act
of Parliament; (droit maritime canadien)
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droit
maritime canadien
Droit - compte tenu des modifications y apportées par la présente loi ou par
toute autre loi fédérale - dont l’application relevait de la Cour de
l’Échiquier du Canada, en sa qualité de juridiction de l’Amirauté, aux termes
de la Loi sur l’Amirauté, chapitre A-1 des Statuts revisés du Canada de 1970,
ou de toute autre loi, ou qui en aurait relevé si ce tribunal avait eu, en
cette qualité, compétence illimitée en matière maritime et d’amirauté. (Canadian
maritime law)
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[29]
It is well-settled (i) that Canadian maritime
law embraces all claims in respect of maritime and admiralty matters in the
modern sense, that is in the sense that these matters are not to be considered
as having been frozen by the Admiralty Act, 1934, (ii) that it is
limited only by the extent of Parliament’s legislative competence (ITO,
at p774) and (iii) that it encompasses rules and principles of tort and
contract adopted from the common law and applied in admiralty cases ( ITO
at p 776).
[30]
However, in determining whether a particular
claim involves a maritime or admiralty matter, the Court “must avoid encroachment on what is in ‘pith and substance’ a
matter of local concern involving property and civil rights or any other matter
which is in essence within exclusive provincial jurisdiction under section 92
of the Constitution Act, 1867” (ITO, at p774). The test
for making that determination, as alluded to previously, is whether the claim’s
subject-matter is so integrally connected to maritime matters as to be
legitimate Canadian maritime law within federal competence under the
constitutional division of powers (ITO, at p 774; Monk Corp. v Island
Fertilizers Ltd, [1991] 1 S.C.R. 779, at p 795).
[31]
MSC concedes that its claim against Trans
Salonikios does not fall within one of the classes of claims listed at
subsection 22(2) of the Act. It does not contend either that it falls under
section 23 of the Act as being a claim coming within the class of subjects of “works and undertakings connecting a province with any other
province or extending beyond the limits of a province”.
[32]
The issue, therefore, is whether that third
party claim is a claim for relief made under or by virtue of “Canadian maritime law” as defined at subsection 2(1)
and interpreted by the courts.
[33]
To the extent the underlying activity allegedly
engaging Canadian maritime law in the present case is that of a land carrier,
there appears not to be much jurisprudential support, if any, for MSC’s
position.
[34]
As Prothonotary Tabib pointed out, ITO
was concerned with the negligence of a stevedore-terminal operator in the
short-term storing of goods within the port area pending delivery to the
consignee. The Supreme Court held that such “incidental
storage” by the sea carrier itself, or by a third party under contract
to the carrier, was a matter of maritime concern by virtue of the “close, practical relationship of the terminal operation to
the performance of the contract of carriage”. It stressed that the
maritime nature of the case depended upon three “significant”
factors: (i) the proximity of the terminal operation to the sea, that is to the
area within the terminal which constitutes the port of Montreal; (ii) the
connection between the terminal operator’s activities within the port area and
the contract of carriage by sea; and (iii) the short-term nature of the storage
pending delivery to the consignee (ITO, at pp 775-776).
[35]
Here, there is hardly any proximity of Trans
Salonikios operations to the sea. Besides picking-up goods on occasion, Trans
Salonikios does not operate from a port area like a terminal operator does. If
there is any proximity, it is with the land. There is also no connection
between Trans Salonikios and the contract of carriage by sea entered into in
the present case since, as pointed out by Prothonotary Tabib, Trans Salonikios
is not even alleged to be contractually bound to any party to that contract.
[36]
I note that in re Industrial Relations
and Disputes Act, [1955] S.C.R. 529, to which ITO refers, the
stevedoring function, which was found to be “an
integral part of carrying on the activity of shipping”, was held to
include the work of “shedmen”, that is of those
who “deliver cargo from the sheds to the tailboards of
trucks or to railway car doors or receive cargo at these points and place it in
the sheds and sometime re-arrange the cargo in the sheds” (ITO,
at p 775) (My emphasis). ITO, therefore, is no indication that cargo
delivery activities that go beyond these points - tailboards of trucks or
railway car doors – are an integral part of carrying on the activity of
shipping within the meaning of section 91(10) of the Constitution Act, 1867.
[37]
MSC also relies on B.C. (A.G.) v Lafarge
Canada, 2007 SCC 23 [Lafarge]. However, this case discusses the
constitutional inapplicability of municipal zoning and land development by-laws
to the construction of an integrated ship offloading/concrete batching facility
on federal waterfront lands administered by the Vancouver Port Authority, not
the relationship between maritime law and land transportation of cargo unloaded
from a ship at a port terminal.
[38]
The facility at issue in Lafarge was
designed to mix aggregate barged in by sea, offloaded and stored temporarily in
silos in the waterfront with cement so that it could be dispatched to various
construction sites within downtown Vancouver (Lafarge, at para 2) That
facility was held to be integrated in marine transportation as an “incidental port development business” and therefore
within the reach of federal jurisdiction under the navigation and shipping head
of power although it was found as “certainly [lying]
beyond the core of s. 91(10)” (Lafarge, at para 72).
[39]
Land transportation of cargo offloaded from a
ship at a port terminal so that it be brought to its next - or ultimate -
destination does not qualify, in my respectful view, as a port development
business within the meaning of Lafarge. (My emphasis)
[40]
I note too that in commenting on ITO, the
Court appears to have found the loading of trucks for the removal of
cargo from the port so as to avoid wharves from becoming so congested as to
cease to operate, to be a logical extension of dockside unloading and storage
activities which were held, in ITO, to be integral to shipping (Lafarge,
at para 35) (My emphasis). However, it did not go as far as to suggest that the
actual land transportation of the goods, once loaded on trucks, from the port
to their consignees is also integral to shipping.
[41]
Whitbread, on
which MSC also relies, dealt with the constitutional applicability of
provisions of the Canada Shipping Act limiting the liability of the
defendants in that case who were sued for damages resulting from a serious
injury sustained by the plaintiff when the pleasure craft he took from its
moorings at Coal Harbour in Vancouver struck rocks in a body of water located
in the city’s north end. The Supreme Court held that theses provisions were
valid legislation in respect of Canadian maritime law, that they applied to
accidents involving not only merchant vessels but also pleasure crafts, and
that their territorial application was not limited to torts committed on high
seas or within the ebb and flow of the tide, but extended to torts committed on
Canada’s inland navigable waterways.
[42]
The Court, in Whitbread, insisted on the
need for legal uniformity in the area of tortious liability for collisions and
accidents occurring in the course of navigation. Speaking for an unanimous
Court, Justice Laforest had this to say on this point:
[…] In this
country, inland navigable waterways and the seas that were traditionally
recognized as the province of maritime law are part of the same navigational
network, one which should, in my view, be subject to a uniform legal regime.
I think it obvious
that this need for legal uniformity is particularly pressing in the area of
tortious liability for collisions and other accidents that occur in the course
of navigation. As is apparent from even a cursory glance at any standard text
in shipping or maritime law, the existence and extent of such liability falls
to be determined according to a standard of “good seamanship” which is in turn
assessed by reference to navigational “rules of the road” and have long been
codified as “collision regulations” [references omitted]. It seems to me to be
self-evident that the level of government that is empowered to enact and amend
these navigational “rules of the road” must also have jurisdiction in respect of
tortious liability to which those rules are so closely related. So far as I am
aware, Parliament’s power to enact collision regulations has never been
challenged; nor, as far as I can tell, has it ever been contended that these
regulations do not apply to vessels on inland waterways. They are in fact
routinely applied to determine the tortious liability of such vessels
[reference omitted]. It follows that the tortious liability of the owners and
operators of these vessels should be regarded as a matter of maritime law that
comes within the ambit of Parliament’s jurisdiction in respect of navigation
and shipping.
(Whitbread,
at p. 1295-1296)
[43]
In Ordon Estate, where it was held that
provincial statutes of general application having the effect of altering federal
maritime negligence law were constitutionally inapplicable in the maritime
context, the Supreme Court of Canada stressed that the need for legal
uniformity in the maritime context resulted in large part from the historical
roots and unique character of Canadian maritime law:
92 Moreover, unlike most other areas
of exclusive federal jurisdiction, maritime law has historically been a
specialized area of law, adjudicated within separate courts through the
application of principles and rules of law which do not derive solely from
traditional common law and statutory sources. The multiplicity of legal
sources, including international sources, which nourish Canadian maritime law
render it a body of law in which uniformity is especially appropriate.
The interference of provincial statutes with core areas of Canadian maritime
law, such as the law of maritime negligence, would interfere with its
historical roots and with its appropriately unique character.
93 The conclusion which we draw
from the above comments is that much of the raison d’être of the
assignment to Parliament of exclusive jurisdiction over maritime matters is to
ensure that Canadian maritime law in relation to core issues of fundamental
international and interprovincial concern is uniform. This raison
d’être, although not unique to the federal power over navigation and
shipping (in the sense that other heads of power were assigned to the federal
legislature out of concern for uniformity), is uniquely important under s. 91(10) because of the intrinsically multi-jurisdictional nature of
maritime matters, particularly claims against vessels or those responsible for
their operation. This concern for uniformity is one reason, among others,
why the application of provincial statutes of general application to a maritime
negligence claim cannot be permitted.
[44]
Here, I fail to see how what supports the need
for legal uniformity in the area of tortious liability for collisions and other
accidents occurring in the course of navigation, is applicable to the area of
tortious liability of land carriers alleged to have failed to deliver to its
rightful consignee cargo picked up at a port terminal. That demonstration has
not been made before me.
[45]
MSC submits that claims for damages in
connection with theft of goods stored in a warehouse pending their final
delivery to the consignee were held to fall within this Court’s jurisdiction in
cases such as Prudential Assurance co v Canada, [1993] 2 FCR 293 (FCA) [Prudential];
Pantainer; and Town Shoes Ltd v Panalpina Inc, 169 FTR 267 (FC) [Town
Shoes]. However, MSC’s reliance on Prudential, Pantainer and Town
Shoes is, in my view, misplaced as all three decisions are easily
distinguishable from the case at bar.
[46]
First, Prudential deals with a completely
different legislative scheme as the matter under consideration related to air
law, not maritime law. The Court’s grant of jurisdiction was found in section
23 of the Act and the claim at issue was rooted in the Carriage by Air Act
and the Warsaw Convention of 1929 on International Carriage by Air and the
Amending Protocol of 1955, which were both incorporated in that Act. Article 18
of the Convention was held to “explicitly cover[s] the
loss of cargo in the case at bar” (Prudential, at p 301).
[47]
Second, unlike Trans Salonikios, the parties in Pantainer
and Town Shoes were in a contractual relationship. Thus, their
responsibility arose from contractual obligations, not from tort principles. In
addition, at issue in Pantainer was whether the Court had jurisdiction
to entertain the defendant’s counter-claim for damages sustained by goods
stored while en route from Italy to Canada and on arrival to Canada as part of
the contract for carriage by sea entered into by the parties. It did not
involve the liability of a land carrier whose actions allegedly caused damage
to cargo previously carried by sea. In Town Shoes, the Court was called
upon to determine whether the plaintiff’s claim for loss of cargo shall be
stayed so as to allow the parties be have the claim exclusively decided by a
German court in accordance with the law of Germany, as contemplated by the
terms and conditions of the bill of landing relied upon by the plaintiff. Town
Shoes was therefore not a matter involving the Court’s jurisdiction per
se.
[48]
I agree that the situation of Trans Salonikios
is much closer to that of the land carriers in The “Dart
Europe” and Marley where the Court held it lacked
jurisdiction, either in contract or in tort, to entertain claims in negligence
directed at a trucker (The “Dart Europe”)
and a rail carrier (Marley) for damage to cargo carried by sea in one
instance and to be carried by sea from the United States to Holland through the
port of Montreal in the other. In discussing these two cases, Prothonotary
Tabib stated the following:
[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.
[49]
I also agree that the integration of the
logistics between a terminal operator and a trucker, as is the case here
according to MSC, does not bring the matter of the trucker’s activities within
federal jurisdiction. As pointed out by Prothonotary Tabib, the cause of action
asserted against Trans Salonikios may arise because Termont Terminal failed in
its duties to ensure proper delivery. However, such cause of action is founded
not on Termont’s duties towards MSC but rather on the extra-contractual
liability of Trans Salonikios, as trucker or thief, towards MSC. As was
Prothonotary Tabib, I am of the view that this integration, while part of the
matter’s res gestae, does not modify the essential character of the
legal relationship, governed by provincial law, between MSC, as ocean carrier,
and Trans Salonikios as trucker.
[50]
The significant transformation, integration and
harmonization of securities markets in Canada through notably technological
changes and evolution was found not be enough to oust the provinces’
jurisdiction in that area in favour of Parliament’s legislative authority over
trade and commerce (Reference Re Securities Act, 2011 SCC 66).
Similarly, the fact that Trans Salonikios needs to be vetted and certified by
Termont to access cargo stored at its terminal, that the terminal is accessed
using computerized access codes and that Trans Salonikios has an obligation to
return the container empty at said terminal once the container has been
delivered and unloaded, does not bring the present matter under the Court’s
jurisdiction as it cannot be said, in my view, that Trans Salonikios’
activities as a trucker, although connected to some extent with the maritime
context, are “so integrally connected to maritime
matters as to be legitimate Canadian maritime law within federal legislative
competence” (ITO, at p 774).
[51]
Trans Salonikios remains fundamentally a trucker
governed by provincial law and it has not been shown, as I have already
indicated, that the historical roots and unique character of Canadian maritime
law require legal uniformity, as it does in the area of tortious liability for
accidents occurring in the course of navigation, for the tortious liability of
land carriers alleged to have failed to deliver to its rightful owner cargo
picked up at a port terminal. Again, when determining the scope of Parliament’s
jurisdiction over navigation and shipping, the courts must avoid encroachment
on what are in ‘pith and substance’ matters of local concerns which are, in
essence, within exclusive provincial jurisdiction.
[52]
Finally, as Prothonotary Tabib pointed out,
MSC’s claim that this Court should hear its third party claim against Trans
Salonikios as a matter of judicial economy was considered and rejected in The
“Dart Europe”. I see no reason whatsoever to
depart from that finding in the present case.
[53]
For these reasons, it is plain and obvious, in
my view, that this Court lacks jurisdiction to entertain MSC’s third party
claim against Trans Salonikios. Therefore, MSC’s appeal of Prothonotary Tabib’s
Order will be dismissed, with costs payable to Trans Salonikios in any event of
the cause.
[54]
As to the assessment of the costs, it shall be
made under column IV of Tariff B. MSC only filed and served its motion record
the day before the hearing, in the middle of the afternoon, and, in doing so without
proper justification, failed to abide by rule 364(3) of the Rules and by a
direction issued by the Court five days prior to said hearing. In particular,
after its third request for adjournment of the hearing of its appeal was
refused, MSC inexplicably brought a last minute request that its motion be
transformed in a motion in writing pursuant to rule 369 of the Rules; the
request was denied. Nevertheless, there was still time for MSC to file and
serve its motion record within the timelines set out in the Rules. Again, it
failed to do so without proper justification. This calls, in my view, for an
elevated cost order.
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