Date: 20001129
Docket: T-1183-00
BETWEEN:
ENCAN LIQUIDATION GENERAL CANADA INC.
Plaintiff
AND:
TRANSINTRA CANADA
- and -
GRANDI TRAGHETTI S.p.A. DI NAVIGAZIONE,
c/o his local agent SEANAUTIC MARINE INC.
- and -
GRIMALDI GROUP OWNER REPRESENTATIVE NORTH AMERICA,
c/o his local agent SEANAUTIC MARINE INC.
Defendants
AND:
GRANDI TRAGHETTI S.p.A. DI NAVIGAZIONE,
c/o his local agent SEANAUTIC MARINE INC.
Third Party
REASONS FOR ORDER
PINARD, J. :
[1] This is a motion on behalf of the defendant Grandi Traghetti S.p.A. Di Navigazione ("Grandi") for an Order that the defendant Transintra Canada's ("Transintra") claim against third party Grandi be stayed pursuant to section 50 of the Federal Court Act, R.S.C. 1985, c. F-7.
[2] The plaintiff's action against the defendants Grandi and Grimaldi Group Owner Representative North America has already been stayed by Dubé J. on October 2, 2000.
[3] The plaintiff's claim is for shortage and damage sustained to a cargo consisting of office equipment and decorative materials (the "cargo") during carriage from Montreal to Algiers, Algeria. Transintra carried on business as a freight forwarder and, in that capacity, acting solely as agent of the plaintiff, made the arrangements for the carriage of the cargo from Montreal to Algiers. To this end, Transintra booked the carriage of the cargo with Grandi through the latter's agent in Montreal, Seanautic Marine Inc. ("Seanautic").
[4] The cargo, stowed in a container, was carried by Grandi from Montreal to Genoa, Italy, on board the M.V. "CANMAR TRIUMPH" which arrived at Genoa on November 5, 1999. The container was stored in a terminal inside the Port of Genoa until November 27, 1999 when it was re-loaded on the M.V. "SUNNY ONE" which carried the container to Algiers, Algeria.
[5] The contract of carriage as between the plaintiff and Grandi is evidenced by a Bill of Lading which contains the following Law and jurisdiction clause:
| a) the provisions of the Italian Code of Navigation shall apply to the contract of carriage evidenced by this Bill of Lading unless the Hague Visby Rules are compulsory applicable; |
| b) any dispute arising under the contract of carriage evidenced by this Bill of Lading shall be determined by the Court of Genova and Italian Law shall apply. |
[6] The same Bill of Lading, at the bottom right hand side, also provides that:
| In accepting this Bill of Lading the Merchant expressly accepts and agrees to all its stipulations, whether written, typed, printed, stamped or otherwise incorporated, as fully as if they were all signed by the Merchant. |
and "Merchant" is defined in the Bill of Lading as follows:
| "MERCHANT" includes the shipper holder consignee receiver of the goods any person owing or entitled to the possession of the goods or of this Bill of Lading and anyone acting on behalf of any such person; |
[7] As Transintra is clearly shown on the Bill of Lading as forwarder, as Transintra acted only as a freight forwarder for its client the plaintiff and as Transintra, therefore, was solely acting as the plaintiff's agent in obtaining the said Bill of Lading, Transintra is a "merchant" who must be presumed to have accepted the Bill of Lading. Consequently, I find that Transintra is bound by all the stipulations of the Bill of Lading, including the above Law and Jurisdiction clause 2).
[8] In this context, the contractual will of such parties is of paramount importance. The fact that the jurisdiction clause exists shifts the onus unto Transintra to establish a "strong cause" which would militate against granting the stay requested by Grandi (see Hyundai Merchant Marine Co. Ltd. and Anraj Fish Products Industries Ltd. and Bengal Seafoods Inc. (June 20, 2000), A-836-99). The Federal Court of Appeal in that case reaffirmed the applicable test set out in The Eleftheria, [1969] 1 Lloyd's 237, for the purpose of establishing such a "strong cause". Applying the test to the present case, I am not satisfied that Transintra has established a strong cause which would militate against granting the stay requested by Grandi. On the contrary, based on paragraph 10 of the Written Representations contained in Grandi's Motion Record, I find that there exists a stronger cause which would militate in favour of granting the relief requested by Grandi. Furthermore, it being now clear, in light of the Order made by Dubé J. staying the plaintiff's action against Grandi, that the said action can only be determined by the Court of Genova, Italy, it would seem to me more appropriate that Transintra's claim against the same defendant Grandi, based on the same contract of carriage and involving many of the same facts, be also determined by the Court of Genova, in Italy.
[9] For all the above reasons, Grandi's motion for an Order that Transintra's action be stayed is granted, with costs.
"Yvon Pinard"
JUDGE
MONTREAL, QUEBEC
November 29, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20001129
Docket: T-1183-00
BETWEEN:
ENCAN LIQUIDATION GENERAL CANADA INC.
Plaintiff
AND:
TRANSINTRA CANADA
- and -
GRANDI TRAGHETTI S.p.A. DI NAVIGAZIONE,
c/o his local agent SEANAUTIC MARINE INC.
- and -
GRIMALDI GROUP OWNER REPRESENTATIVE NORTH AMERICA,
c/o his local agent SEANAUTIC MARINE INC.
Defendants
AND:
GRANDI TRAGHETTI S.p.A. DI NAVIGAZIONE,
c/o his local agent SEANAUTIC MARINE INC.
Third Party
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1183-00
ENCAN LIQUIDATION GENERAL CANADA INC.
Plaintiff
AND:
- and -
GRANDI TRAGHETTI S.p.A. DI NAVIGAZIONE,
c/o his local agent SEANAUTIC MARINE INC.
- and -
GRIMALDI GROUP OWNER REPRESENTATIVE NORTH AMERICA,
c/o his local agent SEANAUTIC MARINE INC.
Defendants
AND:
GRANDI TRAGHETTI S.p.A. DI NAVIGAZIONE,
c/o his local agent SEANAUTIC MARINE INC.
Third Party
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: November 27, 2000
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 29, 2000
APPEARANCES:
| Mélanie Bernier for defendant Transintra Canada |
| Laurent Fortier for defendants Grandi Traghetti S.p.A. Di Navigazione, |
| Grimaldi Group Owner Representative North America |
Page: 2
SOLICITORS OF RECORD:
| Sproule Castonguay Pollack for defendant Transintra Canada |
Montreal, Quebec
| Stikeman Elliott for defendants Grandi Traghetti S.p.A. Di Navigazione, |
| Montreal, Quebec Grimaldi Group Owner Representative North America |
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