A‑444‑04
2006 FCA 284
OT Africa Line Ltd., OT Africa Line, and the Owners and Charterers and all others interested in the Ship “Mathilde Maersk” and in the Ship “Suzanne Delmas” (Appellants) (Defendants)
v.
Magic Sportswear Corp. and Blue Banana (Respondents) (Plaintiffs)
Indexed as: Magic Sportswear Corp. v. Mathilde Maersk (The) (F.C.A.)
Federal Court of Appeal, Décary, Evans and Sharlow JJ.A.—Ottawa, June 21 and August 23, 2006.
Maritime Law — Carriage of Goods — Respondents (shippers) bringing action in Federal Court against appellants (carriers) for partial loss of cargo carried by sea from New York to Monrovia, Liberia — Appellants commencing proceedings in High Court in London claiming damages for breach of contract (clause in bill of lading specifying High Court as exclusive forum), obtaining anti‑suit injunction against respondents restraining latter from pursuing Federal Court action — Appellants seeking stay of respondents’ action in Federal Court on basis of exclusive forum clause, English anti‑suit injunction — Marine Liability Act, s. 46(1) conferring jurisdiction on Federal Court over respondents’ claim — However, s. 46(1) not removing Court’s broad discretion under Federal Courts Act, s. 50(1) to stay proceeding over which having jurisdiction but where claim being proceeded with elsewhere or where stay in best interest of justice — Stay granted as Federal Court less convenient forum.
Federal Court Jurisdiction — Respondent shippers commencing action in Federal Court for damages for loss of cargo carried by sea notwithstanding clause in bill of lading specifying High Court in London as exclusive forum for settling disputes — Respondents relying on Marine Liability Act, s. 46(1) providing claimant may institute proceedings in Canadian court where certain conditions met — These conditions met as one of appellants having branch office in Canada, contract made in Canada — Marine Liability Act, s. 46(1) conferring jurisdiction on Federal Court over respondents’ claim — However, s. 46(1) not removing Court’s broad discretion under Federal Courts Act, s. 50(1) to stay proceeding despite having jurisdiction where claim being proceeded with elsewhere or where stay in interest of justice — Action stayed as Federal Court forum non conveniens.
Practice — Stay of Proceedings — Appeal from order refusing to stay respondents’ Canadian action for damages for loss of cargo carried by sea — Appellants relying on exclusive forum clause in contract, English proceeding, to argue High Court in London appropriate forum — Seeking stay pursuant to Federal Courts Act, s. 50 — Marine Liability Act, s. 46(1), allowing respondents to institute proceedings in Federal Court, but not removing Court’s discretion under s. 50 to grant stay where another court more convenient forum — Appeal allowed.
Conflict of Laws — Respondents commencing action in Federal Court for damages for loss of cargo carried by sea by appellants from New York to Monrovia, Liberia — Appellants: (1) obtaining anti‑suit injunction from, seeking damages in, London High Court on basis contract between parties providing that court appropriate forum; (2) bringing motion in Federal Court to have respondents’ action stayed — Respondents arguing having right to litigate in Canada pursuant to Marine Liability Act, s. 46(1) despite foreign exclusive jurisdiction clause — S. 46 granting jurisdiction to Federal Court as appellants having branch office, and contract made, in Canada — Weight to be given in forum non conveniens analysis to parties’ choice of forum, English judgments asserting jurisdiction of High Court — International comity, avoidance of parallel proceedings, problems of recognition warranting treatment of English judgments as relevant — S. 46(1) not ousting principles of international comity — Consideration of relevant factors leading to conclusion Federal Court forum non conveniens.
Construction of Statutes — Marine Liability Act, s. 46(1) allowing claimants to institute proceedings in Canada re: carriage of goods despite foreign exclusive jurisdiction clause where certain conditions (i.e. Canadian connection) met — S. 46(1) designed to redress perceived power imbalance between shipowners, shippers — However, s. 46 not stating foreign exclusive jurisdiction clause null and void or of no effect where conditions for its application met — Had Parliament intended to invalidate such clauses for all purposes, would have said so explicitly — S. 46 removing Court’s discretion to stay solely on basis of exclusive forum clause, but not broad discretion to stay pursuant to Federal Courts Act, s. 50(1).
This was an appeal from an order of the Federal Court refusing to stay the respondents’ action for damages for the partial loss of cargo carried by water. The appellants carried the respondents’ cargo from New York to Monrovia, Liberia. The alleged loss was discovered after the goods arrived in Monrovia. The respondents brought an action in the Federal Court at the instigation of the insurers of the cargo, who were based in Toronto. Following the commencement of that action, the appellants: (1) commenced proceedings in the High Court in London claiming damages for the breach of a clause in the bill of lading (the contract) specifying the High Court in London as the exclusive forum; (2) obtained an anti‑suit injunction to restrain the respondents from litigating their claim in Canada, or elsewhere, in breach of that clause; and (3) brought the motion in the Federal Court to stay the respondents’ action.
Subsection 46(1) of the Marine Liability Act provides that “a claimant may institute judicial . . . proceedings in a court . . . in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where. . . (b) the person against whom the claim is made has a . . . branch . . . in Canada; or (c) the contract was made in Canada.” The appellant OT Africa Line Ltd. had a branch office in Toronto, and the contract was made in Canada. As such, subsection 46(1) conferred jurisdiction on the Federal Court over the respondents’ claim against the appellants. At issue was (1) whether subsection 46(1) removed the Court’s discretion to grant a stay pursuant to subsection 50(1) of the Federal Courts Act when it is not the most convenient forum (forum non conveniens); and if not (2) what weight was the Court required to give in its forum non conveniens analysis to the parties’ contractual choice of forum and to the judgments asserting the jurisdiction of the High Court?
Held, the appeal should be allowed.
Subsection 46(1) removes the Court’s discretion to stay solely on the ground that the parties have selected an exclusive forum outside of Canada. However, it does not expressly remove its broad discretion under subsection 50(1) of the Federal Courts Act to stay a proceeding over which it has jurisdiction, but where “the claim is being proceeded with in another court or jurisdiction” or where “a stay is in the interest of justice”. It simply affirms the Court’s jurisdiction by specifying that claimants who satisfy one of the three connecting factors it sets out may pursue their claim in Canada, despite a contractual foreign exclusive jurisdiction clause.
While subsection 46(1) is designed to redress a perceived power imbalance between shipowners and shippers by favouring shippers, it only does so to the extent of providing claimants with the option of instituting proceedings in a Canadian forum. It does not require them to litigate in Canada, nor does it state that foreign exclusive jurisdiction clauses are null and void or of no effect when there is a specified Canadian connection.
Three principal considerations favoured a Canadian court treating the English judgments as relevant in a forum non conveniens analysis: international comity, the avoidance of parallel proceedings on the same matter, and problems of recognition in the event that the parallel proceedings produce different results. The Supreme Court of Canada authoritatively stated in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board) the approach of Canadian law to comity in the context of identifying the more convenient forum. The question herein was whether the English courts had “departed from our own test of forum non conveniens to such an extent as to justify our courts in refusing to respect the assumption of jurisdiction by the foreign court.” A Canadian court could normally be expected to have reached the same conclusion as the English courts, i.e. if the applicable law of the contract had been Canadian, a court in Canada would, in the absence of strong reasons, have given effect to an exclusive jurisdiction clause in the contract, in the interests of commercial certainty and on the basis of the principle of party autonomy in determining the terms of the contract.
The shippers, the consignees, the goods, and the ports of loading and discharge had no connection to Canada. While section 46 preserves the jurisdiction of Canadian courts in proceedings brought by foreign shippers and consignees, it does not follow that, in deciding whether to exercise its jurisdiction, a court should depart from its normal practice of affording respect to foreign judgments. Given the dominant role being played in the litigation herein by the Canadian insurers, it did not frustrate Parliament’s purpose (the protection of the interests of Canadian exporters and importers) to take the English judgments into account in the course of determining the more convenient forum. Section 46 did not oust the principles of international comity set out in Amchem Products. Weight could therefore be given to the English judgments asserting their jurisdiction in order to determine if, compared to the High Court in London, the Federal Court was forum non conveniens. For similar reasons, to give weight to the parties’ choice of forum in this case was not inconsistent with the policy underlying section 46, especially in light of the fact that this case did not involve Canadian shippers or Canadian goods, but a claim subrogated to Canadian shippers in respect of foreign shippers and foreign goods. If Parliament had intended to invalidate exclusive jurisdiction clauses for all purposes, it could have declared them to be void or of no effect.
The factors relevant to a forum non conveniens inquiry are set out by the Supreme Court in Spar Aerospace Ltd. v. American Mobile Satellite Corp. The factors connecting the dispute herein to Canada were minor, whereas those connecting it with England were cumulatively much more significant. (1) The English judgments implicated the principle of comity, raised the possibility of parallel proceedings, and made the recognition in England of a judgment by the Federal Court potentially problematic. (2) Taking into account the parties’ choice of the High Court in London as the exclusive forum respects the principle of freedom of contract, promotes commercial certainty, and does not frustrate the policy objectives of section 46. (3) It is generally more convenient to litigate in a forum in the jurisdiction whose law governs the dispute. (4) The appellant OT Africa Line Ltd.’s head office is in London, where it keeps its corporate records, books and accounts, and where one potential witness resides. For these reasons, the Federal Court is a less convenient forum and the respondents’ action was stayed on the condition that the appellants pursue without delay their proceeding in the English High Court.
statutes and regulations judicially
considered
Carriage of Goods by Sea Act, 46 U.S.C. App. § 1300 (2000).
Carriage of Goods by Sea Act 1991 (Aust.), No. 160, 1991, s. 11(2).
Civil Procedure Rules 1998, S.I. 1998/3132, Rule 11.
Contracts (Applicable Law) Act 1990 (U.K.), 1990, c. 36.
Convention on the Law Applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980 (80/934/ECC), Art. 3, 4.
Federal Courts Act, R.S.C., 1985, c. F‑7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 50(1) (as am. idem, s. 46).
Marine Liability Act, S.C. 2001, c. 6, ss. 44, 46, Sch. 4.
Maritime Transport Act 1994 (N.Z.), 1994/104, s. 210(1).
United Nations Convention on the Carriage of Goods by Sea, 1978, concluded at Hamburg on 31 March, 1978, 1695 U.N.T.S. 3 (Hamburg Rules) [S.C. 2001, c. 6, Sch. 4], Art. 21.
cases judicially considered
applied:
Jian Sheng Co. v. Great Tempo S.A., [1998] 3 F.C. 418; (1998), 225 N.R. 140 (C.A.); Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897; (1993), 102 D.L.R. (4th) 96; [1993] 3 W.W.R. 441; 23 B.C.A.C. 1; 77 B.C.L.R. (2d) 62; 14 C.P.C. (3d) 1; 150 N.R. 321; 39 W.A.C. 1; Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205; (2002), 220 D.L.R. (4th) 54; 28 C.P.C. (5th) 201; 297 N.R. 83; 2002 SCC 78.
distinguished:
Z.I. Pompey Industrie v. ECU‑Line N.V., [2003] 1 S.C.R. 450; (2003), 224 D.L.R. (4th) 577; 30 C.P.C. (5th) 1; 2003 SCC 27; Incremona‑Salerno Marmi Affini Siciliani (I.S.M.A.S.) s.n.c. v. Castor (The), [2003] 3 F.C. 220; (2002), 297 N.R. 151; 2002 FCA 479.
considered:
OT Africa Line Ltd. v. Magic Sportswear Corporation & Ors, [2004] EWHC 2441 (Comm.); OT Africa Line Ltd. v. Magic Sportswear Corporation & Ors, [2005] EWCA Civ 710; Dongnam Oil & Fats Co. v. Chemex Ltd. (2004), 264 F.T.R. 264; 2004 FC 1732.
referred to:
Ford Aquitaine Industries SAS v. Canmar Pride (The), [2005] 4 F.C.R. 441; (2005), 271 F.T.R. 224; 2005 FC 431; Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995); Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 173 D.L.R. (4th) 498; 122 B.C.A.C. 18; 67 B.C.L.R. (3d) 278; 34 C.P.C. (4th) 1; 1999 BCCA 243.
authors cited
Canada. House of Commons. Standing Committee on Transport and Government Operations. Evidence, 1st Session, 37th Parliament (27 March 2001).
Force, Robert and Martin Davies. “Forum Selection Clauses in International Maritime Contracts” in Jurisdiction and Forum Selection in International Maritime Law: Essays in Honor of Robert Force. The Hague: Kluwer Law International, 2005, 4.
House of Commons Debates, No. 058, 1st Session, 37th Parliament (9 May 2001).
Talpis, Jeffrey A. and Shelley L. Kath. “The Exceptional as Commonplace in Québec Forum Non Conveniens Law: Cambior, a Case in Point” (2000), 34 R.J.T. 761.
Tetley, William. “Jurisdiction Clauses and Forum Non Conveniens in the Carriage of Goods by Sea” in Jurisdiction and Forum Selection in International Maritime Law: Essays in Honor of Robert Force. The Hague: Kluwer Law International, 2005, 24.
APPEAL from a decision of a Judge of the Federal Court ([2005] 2 F.C.R. 236; (2004), 264 F.T.R. 1; 2004 FC 1165) affirming the decision of a Prothonotary (Magic Sportswear Corp. v. OT Africa Line Ltd., 2003 FC 1513) dismissing the appellants’ motion to stay the respondents’ action for damages for the partial loss of cargo carried by water. Appeal allowed.
appearances:
C. William Hourigan for appellants.
Marc D. Isaacs for respondents.
solicitors of record:
Fasken Martineau DuMoulin LLP, Toronto, for appellants.
Strathy & Associates, Toronto, for respondents.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1]Contracts for the carriage of goods by sea often specify both the exclusive forum for settling disputes between the shipper and the carrier, and the applicable law. The High Court, or an arbitrator, in London is often named as the exclusive forum where any disputes arising from the contract are to be resolved in accordance with English law. The high cost and inconvenience of having to litigate a claim for cargo loss in a foreign forum can deprive Canadian shippers of an effective remedy for a breach of contract by the carrier, and compel the acceptance of a settlement on terms favourable to the carrier.
[2]In 2001, Parliament addressed this issue by enacting subsection 46(1) of the Marine Liability Act, S.C. 2001, c. 6:
46. (1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where
(a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada;
(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or
(c) the contract was made in Canada.
[3]This is an appeal by carriers from an order of a Judge of the Federal Court affirming the decision of a Prothonotary to dismiss their motion to stay an action by shippers for damages for the partial loss of cargo. The Prothonotary’s reasons are reported as Magic Sportswear Corp. v. OT Africa Line Ltd., 2003 FC 1513, and the Judge’s as Magic Sportswear Corp. v. Mathilde Maersk (The), [2005] 2 F.C.R. 236 (F.C.).
[4]The appeal is about whether the dispute over the alleged cargo loss should be resolved in the High Court in London, as the contract provides, or in the Federal Court, which has jurisdiction by virtue of subsection 46(1). It requires a consideration of two questions. First, to what extent has subsection 46(1) modified private international law principles regarding the Court’s discretion to decline to exercise its jurisdiction on the ground that another forum is more appropriate? Second, in making that determination, must the Court take into account foreign judgments and contractual foreign exclusive forum clauses?
B. BACKGROUND
[5]Following the commencement of the shippers’ action in the Federal Court, the carriers sought, and obtained, from the High Court in London an anti‑suit injunction to restrain the shippers from litigating their claim in Canada, or elsewhere, in breach of the clause in the contract specifying the High Court in London as the exclusive forum. Armed with the English judgment, the carriers brought the motion in the Federal Court to stay the shippers’ action.
[6]The appellants are OT Africa Line Ltd., OT Africa Line, and the owners, charterers and others interested in the two ships that carried the cargo from New York to Monrovia, Liberia, via Le Havre where it was transhipped. OT Africa Line Ltd., has its head office in London and other offices around the world, including a branch office in Toronto where it conducts its business through the agency services of Seabridge International Shipping Inc. I shall refer to the appellants as “the carriers.”
[7]The respondents to the appeal are Magic Sportswear Corporation, a Delaware corporation, carrying on business in New York, and Blue Banana, a Liberian company, carrying on business in Monrovia. They are the shipper and consignee, respectively, of the allegedly lost cargo and are the plaintiffs in an action in the Federal Court against the carriers to recover damages for the loss. I shall refer to the respondents collectively as “the shippers.”
[8]The alleged loss was discovered and investigated after the ship carrying the goods arrived in Monrovia. The litigation is being pursued at the instigation of the insurers of the cargo who, having paid under the policy on a claim by the consignee, are exercising their right of subrogation to the rights of the shippers.
[9]Like the shippers, the goods have no connection with Canada. However, the insurers of the cargo are based in Toronto, where the bill of lading evidencing the contract for the carriage of the goods was issued on February 5, 2002, and where the ocean freight was payable to OT Africa Line Ltd.
[10]The clause of the conditions to the bill of lading relevant to this appeal provides:
25. LAW AND JURISDICTION
(1) Any claim or dispute whatsoever arising in connection with the carriage under the Bill of Lading shall exclusively be governed by English law and determined by the High Court in London.
(2) In the event that anything herein contained is inconsistent with any applicable international convention or national law which cannot be departed for private contract the provisions hereof shall to the extent of such inconsistency but no further be null and void.
[11]The chronology of the principal events in the protracted history of this litigation is as follows:
· August 1, 2003: the shippers commenced an action in the Federal Court against the carriers, claiming $30,000 for breach of contract for the partial loss of the cargo;
· August 15, 2003: notice of the shippers’ action was served on the Toronto office of OT Africa Line Ltd.;
· September 3, 2003: the carriers commenced proceed-ings in London claiming: (i) damages against the shippers for commencing an action in the Federal Court in breach of clause 25 of the conditions to the bill of lading; (ii) damages from the cargo insurers for inducing the breach of contract; (iii) an anti‑suit injunction against the shippers and their insurers to restrain them from breaching clause 25 by pursuing their action in the Federal Court, and from commencing any other proceedings for the alleged cargo loss anywhere other than in London; and (iv) a declaration that the carriers were not liable for the alleged partial loss of the cargo;
· September 8, 2003: the carriers obtained an interim anti‑suit injunction from Gross J., a Judge of the High Court in London, on an ex parte motion of which the shippers had short notice;
· September 9, 2003: the carriers filed a motion in the Federal Court to stay the shippers’ action against them;
· October 28, 2003: at the instance of their insurers, the shippers filed an acknowledgement of service indicating their intention to contest the jurisdiction of the High Court, but subsequently made no jurisdiction application;
· December 15, 2003: Prothonotary Milczynski of the Federal Court issued an oral order dismissing the carriers’ motion for an order staying the shippers’ action against them in the Federal Court for damages for the partial loss of the cargo. Written reasons were issued on December 22, 2003;
· April 5, 2004: Cooke J. of the English High Court gave the carriers leave to join the shippers’ insurers as parties to the English proceedings, to serve them in Canada, and to amend the claim accordingly;
· August 23, 2004: O’Keefe J. of the Federal Court dismissed the carriers’ appeal from the order of the Prothonotary refusing the stay;
· November 3, 2004: an anti‑suit injunction against the shippers was issued by Langley J., a Judge of the Commercial Court of the High Court in London. His reasons are reported at [2004] EWHC 2441 (Comm.) [OT Africa Line Ltd. v. Magic Sportswear Corporation & Ors];
· June 13, 2005: the English Court of Appeal dismissed the shippers’ appeal from the issue of the anti‑suit injunction. The Court’s reasons are reported at [2005] EWCA 710 [OT Africa Line Ltd. v. Magic Sportswear Corporation & Ors];
· June 15, 2005: the carriers’ appeal to this Court from the order of O’Keefe J. was adjourned pending the disposition of the shippers’ petition to the House of Lords for leave to appeal the order of the English Court of Appeal upholding the anti‑suit injunction;
· December 9, 2005: the House of Lords dismissed the petition for leave to appeal; and
· June 21, 2006: this Court heard the carriers’ appeal.
C. THE ISSUES AND THE PARTIES’ POSITIONS
[12]Although the shippers are seeking a relatively small amount in damages for the cargo loss, the case raises issues of principle potentially affecting hundreds of similar claims. The question in dispute concerns the appropriate forum for litigating the claim and involves a conflict of laws.
[13]English law, the proper law of the contract in this case, regards the parties’ contractual choice of forum as virtually conclusive. In contrast, subsection 46(1) permits a party to institute proceedings in Canada for breach of contract, despite the presence of a clause nominating a foreign court as the exclusive forum for the resolution of disputes under the contract, provided that the claimant establishes that the parties or the contract have one of the statutorily specified connections to Canada.
[14]In the present case, subsection 46(1) confers jurisdiction on the Federal Court over the shippers’ claim against the carriers because the contract was made in Canada and the carriers have a place of business in Canada. The appeal raises two issues concerning the exercise of that jurisdiction.
[15]First, does subsection 46(1) remove the discretion of the Federal Court and the Federal Court of Appeal to grant a stay pursuant to subsection 50(1) [as am. by S.C. 2002, c. 8, s. 46] of the Federal Courts Act, R.S.C., 1985, c. F‑7 [s. 1 (as am. idem, s. 14)], even if another jurisdiction is a more convenient forum (the forum non conveniens doctrine) than Canada? The carriers say that it does not, while the shippers say that it does.
[16]As relevant to this appeal, the Federal Courts Act provides as follows:
50. (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
[17]Second, if subsection 46(1) does not deprive the Court of its discretion to stay proceedings when it is the less convenient forum, what weight, if any, should the Court give in its forum non conveniens analysis to the parties’ contractual choice of forum and to the judgments asserting the jurisdiction of the English High Court over the dispute by virtue of the exclusive jurisdiction clause?
[18]The carriers say that the principles of comity and freedom of contract, commercial certainty, and the desirability of avoiding parallel proceedings in Canada and England, require that these factors be afforded considerable weight. The shippers, on the other hand, say that to give the exclusive jurisdiction clause and the English judgments any weight would defeat the purpose of subsection 46(1) of the Marine Liability Act by depriving them of their statutory right to litigate in Canada, despite the foreign exclusive jurisdiction clause in the contract.
[19]For the reasons which follow, I am of the opinion that the carriers are right and that the shippers’ action in the Federal Court should be stayed. Accordingly, I would allow the carriers’ appeal.
D. ANALYSIS
Issue 1: Standard of review
[20]The bases upon which this Court may set aside a decision of the Federal Court respecting a motion for a stay were clearly articulated by Décary J.A. in Jian Sheng Co. v. Great Tempo S.A., [1998] 3 F.C. 418 (C.A.), at paragraph 12:
In reviewing a discretionary decision of a motions judge upon an application to stay proceedings on the basis of a jurisdiction clause, a court of appeal must uphold the decision unless it was arrived at on a wrong basis or was plainly a wrong decision (see Seapearl [Seapearl (The Ship M/V) v. Seven Seas Dry Cargo Shipping Corporation of Santiago, Chile, [1982] 2 F.C. 161 (C.A.)], at page 176, Pratte J.A.). A similar standard of review is to be applied by a motions judge in an appeal from a prothonotary’s order of this kind (see Canada v. Aqua‑Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), at page 454). This Court may therefore interfere only if the Motions Judge had no grounds to interfere with the Prothonotary’s decision or, in the event such grounds existed, if her own decision was arrived at on a wrong basis or was plainly a wrong decision.
[21]In the present case, the issues raised on appeal are questions of law. The first question of law is whether subsection 46(1) removes the Court’s discretion to decline to exercise its jurisdiction on the ground that it is not the more convenient forum. If the subsection does not remove the Court’s discretion to order a stay, a second question of law arises, namely, whether any weight should be given to the exclusive jurisdiction clause and to the English judgments asserting jurisdiction over the dispute.
[22]If the Court below was wrong on either of these issues, it exercised its discretion on a wrong basis, and this Court is warranted in setting aside the order and substituting its own.
Issue 2: Does subsection 46(1) of the Marine Liability Act remove the Court’s jurisdiction under section 50 of the Federal Courts Act to stay the shippers’ proceeding in the Federal Court if it is forum non conveniens?
[23]For convenience, I set out again subsection 46(1), which lies at the heart of this appeal.
46. (1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where
(a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada;
(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or
(c) the contract was made in Canada.
[24]It is common ground that this provision confers jurisdiction on the Federal Court over the shippers’ claim in this case. First, the Hamburg Rules (the United Nations Convention on the Carriage of Goods by Sea, 1978, 31 March 1978, 1695 U.N.T.S. 3 [S.C. 2001, c. 6, Sch. 4], which came into effect internationally on November 1, 1993, when 20 countries ratified or acceded to them, do not apply, and the contract directs the adjudication of claims arising under it to a court outside Canada. Second, two of the statutory factors connecting the dispute with Canada are satisfied: the defendant to the claim, OT Africa Line Ltd., has a place of business in Canada (paragraph 46(1)(b)), and the contract for the carriage of goods was made in Canada (paragraph 46(1)(c)). Third, the Federal Court would be competent to determine the claim if the contract had referred it to Canada.
[25]The shippers argue that subsection 46(1) not only confers jurisdiction on the Federal Court over the dispute, but also directs the Court to exercise its jurisdiction, without considering whether it, or the High Court in London, is the more convenient forum for litigating it. Accordingly, they say, the Federal Court was wrong to decide otherwise. I disagree for the following three reasons.
[26]First, subsection 46(1) does not state that, once one of the jurisdictional criteria in subsection 46(1) is present, the court in which the claimant has elected to proceed must exercise its jurisdiction. The subsection merely provides that, when it applies, a claimant may institute proceedings in a court in Canada that would have jurisdiction if the contract had referred the claim to Canada. It gives no directive to the court in Canada in which the claimant elects to proceed respecting that court’s exercise of its jurisdiction.
[27]Second, subsection 46(1) does not expressly remove the broad discretion of the Federal Court and the Federal Court of Appeal under subsection 50(1) of the Federal Courts Act to stay a proceeding over which they have jurisdiction, but where “the claim is being proceeded with in another court or jurisdiction” or a stay “is in the interest of justice”. In my opinion, it requires more specific language than that in section 46 to remove from the courts a power fundamental to their ability to control their own process.
[28]Third, it would produce anomalous results to interpret subsection 46(1) as implicitly removing the Federal Courts’ discretion in deciding to stay on the ground that another court is the more convenient forum.
[29]Suppose, for example, that, in this case, in addition to the English choice of law and exclusive forum clauses, the contract had provided for the carriage of the cargo from New York to London, the bill of lading had been issued in London, and the loss of the cargo was alleged to have occurred in London, where all the witnesses resided.
[30]Since all these connecting factors favour litigating the dispute in a competing forum, England, it would make no sense to require the Federal Court to decide the dispute, simply because it has jurisdiction under subsection 46(1) on the ground that the carrier has an office in Toronto. And, if proceedings had already been commenced in England, to interpret the legislation as precluding a Canadian court from subsequently considering whether it was the less convenient forum would require the court to exclude considerations of international comity.
[31]It would also be odd to conclude that subsection 46(1) requires a court in Canada to decide a dispute because the parties had agreed to a forum outside Canada, whereas if the contract had contained no exclusive jurisdiction clause, a court in Canada would have declined to exercise jurisdiction on the ground that it was not the more convenient forum.
[32]Counsel for the shippers argues that this Court is bound by precedent deciding that subsection 46(1) not only confers jurisdiction on a court in Canada where a claimant elects to proceed, but also requires the court to exercise it. He relies in particular on the following paragraphs in the reasons of Justice Bastarache when writing for the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU‑Line N.V., [2003] 1 S.C.R. 450, at paragraphs 37-38:
Section 46(1) of the Marine Liability Act, which entered into force on August 8, 2001, has the effect of removing from the Federal Court its discretion under s. 50 of the Federal Court Act to stay proceedings because of a forum selection clause where the requirements of s. 46(1)(a), (b), or (c) are met. This includes where the actual port of loading or discharge is in Canada. In this case, there would be no question that the Federal Court is an appropriate forum to hear the respondents’ claim but for the fact that s. 46 does not apply to judicial proceedings commenced prior to its coming into force: Incremona‑Salerno Marmi Affini Siciliani (I.S.M.A.S.) s.n.c. v. Ship Castor (2002), 297 N.R. 151, 2002 FCA 479, at paras. 13‑24. Section 46 of the Marine Liability Act is therefore irrelevant in this appeal.
Indeed, s. 46(1) would appear to establish that, in select circumstances, Parliament has deemed it appropriate to limit the scope of forum selection clauses by facilitating the litigation in Canada of claims related to the carriage of goods by water having a minimum level of connection to this country. Such a legislative development does not, however, provide support for the fundamental jurisprudential shift made by the Court of Appeal in the case at bar. To the contrary, s. 46(1) indicates Parliament’s intent to broaden the jurisdiction of the Federal Court only in very particular instances that can easily be ascertained by a prothonotary called upon to grant a stay of proceedings pursuant to the forum selection clause of a bill of lading. Section 46(1) in no way mandates a prothonotary to consider the merits of the case, an approach in line with the general objectives of certainty and efficiency, which underlie this area of the law.
[33]Although the meaning of these passages may not be beyond dispute, I do not agree with counsel’s interpretation of them. In my view, Justice Bastarache was saying that, when one of the statutory conditions for jurisdiction is satisfied, subsection 46(1) removes the Court’s discretion to stay proceedings solely because of a foreign forum selection clause. Justice Bastarache was thus not addressing the question in our case, namely, whether subsection 46(1) also removes the Court’s discretion to order a stay when, taking all relevant considerations into account, it is not the more convenient forum.
[34]I interpret in the same manner the passage in the reasons given for this Court by Nadon J.A. in Incremona‑Salerno Marmi Affini Siciliani (I.S.M.A.S) s.n.c. v. Castor (The), [2003] 3 F.C. 220, at paragraph 13 and referred to above by Justice Bastarache.
[35]Counsel for the shippers also suggested that subsection 46(1) would be largely redundant if it was not interpreted as removing the Federal Court’s discretion to grant a stay on the ground that it was not the more convenient forum. Again, I do not agree.
[36]First, subsection 46(1) affirms the Court’s jurisdiction by specifying that claimants who satisfy one of the three connecting factors set out in paragraphs (a), (b), and (c) may pursue their claim in Canada, despite a contractual foreign exclusive jurisdiction clause. Second, the statutory bases of jurisdiction are simpler to apply than the common law’s “real and substantial connection” test for determining whether the Court has jurisdiction over a claim and, arguably, more easily satisfied. Third, it removes the Court’s discretion to stay solely on the ground that the parties have selected an exclusive forum outside Canada.
[37]Accordingly, like the Federal Court Judge, I agree with the Prothonotary’s analysis (at paragraph 16 of her reasons) on this issue: see also Ford Aquitaine Industries SAS v. Canmar Pride (The), [2005] 4 F.C.R. 441 (F.C.), at paragraphs 38‑40. Thus, while subsection 46(1) confers jurisdiction on the Federal Court over the shippers’ claim for the partial cargo loss, it is still necessary to decide if the Federal Court or the High Court in London is the more convenient forum in order to determine if the carriers’ motion for a stay should be granted.
Issue 3: Did the Federal Court err in exercising its discretion under section 50 of the Federal Courts Act to refuse to stay the shippers’ action, on the ground that it was not the less convenient forum?
(i) The English judgments
(a) the attornment issue
[38]The forum non conveniens analysis conducted by the Federal Court appears to have given no weight to the interim anti‑suit injunction issued ex parte by Justice Gross in the High Court in London, on the ground that the shippers had not attorned to the jurisdiction of the English court.
[39]The Prothonotary principally based her rejection of the argument that the shippers had attorned on the ground of an annotation to the English Civil Procedure Rules 1998 [S.I. 1998/3132]. She also mentioned the possible existence of practical reasons why the shippers did not contest the court’s jurisdiction. On appeal, the Judge of the Federal Court agreed. In my respectful opinion, they were in error in discounting the English judgment on the ground of non‑attornment.
[40]The law of a foreign jurisdiction is a question of fact to be determined on the basis of the evidence before the court. The record before the Prothonotary included an uncontradicted affidavit from Sean Gibbons, an English solicitor and a partner in the firm acting on behalf of the carriers in the English proceeding for an anti‑suit injunction.
[41]Mr. Gibbons explained in the affidavit that, after Justice Gross had issued the anti‑suit injunction, the shippers’ English solicitors filed two acknowledgements of service with the Commercial Court indicating that they intended to contest the jurisdiction of the English courts over the cargo claim. However, they failed to bring an application to contest the jurisdiction within the 28 days prescribed in the rules of the Commercial Court.
[42]Mr. Gibbons further stated that the effect of Rule 11, paragraph 5, of the English Civil Procedure Rules 1998 is that, having failed to contest the jurisdiction of the court within the time specified after filing their acknowledgement of service, the shippers were to be treated in English law as having accepted that the court had jurisdiction to try the claim. The reasons of Justice Langley (at paragraph 11), which were rendered after the decisions of the Prothonotary and the Federal Court, confirm Mr. Gibbons’ view of the law in England on this issue.
[43]Having concluded that the Federal Court’s refusal to attach weight to the anti‑suit injunction was based on a misapprehension of the evidence, I must consider de novo whether weight should be given in the forum non conveniens analysis to the English decisions, including the decisions of Justice Langley and the English Court of Appeal, which were not available to the Federal Court.
(b) Commercial Court
[44]Sitting in the Commercial Court, Justice Langley had the benefit of the reasons of both the Prothonotary and the Federal Court Judge. The issues in the Commercial Court most relevant to the present appeal were whether (i) the carriers’ proceeding in the English High Court should be stayed in view of the action already commenced by the shippers in the Federal Court, and (ii) the carriers’ anti‑suit injunction against the shippers should be continued or discharged, and a similar injunction issued against their insurers.
[45]On the first issue, he stated that English courts normally give effect to contractual exclusive jurisdiction clauses, in the absence of “strong reasons” for not so doing. Accordingly, he reasoned (at paragraph 33), it would take “some exceptional justification” to stay the English proceedings when the parties had selected the High Court in London as the exclusive forum for resolving disputes arising from the contract.
[46]Justice Langley declined to depart from the rule of English private international law that parties’ contractual selection of the exclusive forum is normally determinative. He found the connections with Canada relied on by the shippers (the place where the contract was made, ocean freight was payable, and the carriers had an office) to be minor and not relevant to the issues arising from the cargo claim. Hence, apart from the effect of subsection 46(1), which he termed “the overriding issue,” he concluded that the shippers had not made out a case for an order staying the carriers’ action in England.
[47]Justice Langley regarded subsection 46(1) as relevant to the request for a stay of the English proceedings, as well as to the anti‑suit injunction restraining the shippers from proceeding with their claim in another forum. He stated that, on both issues, the question was whether the subsection constituted “strong reasons” for not giving effect to the exclusive jurisdiction clause. He concluded (at paragraph 41) that:
. . . there is insufficient logic in treating Section 46 as giving rise to some exceptional circumstance beyond the usual case where a party seeks to proceed in another court, relying on the principles by which that court is guided in the exercise of its own jurisdiction, and does so despite an exclusive jurisdiction clause binding upon that party. In such circumstances, English law is, I think, established at the highest level that an anti‑suit injunction should be granted essentially to ensure that the parties abide by the agreement they have made.
(c) Court of Appeal
[48]In more elaborate reasons, Lord Justice Longmore defined the crucial issue (at paragraph 15) as the extent to which, when deciding whether to stay the carriers’ proceeding, the English court should have regard to subsection 46(1) and to the judgments of the Federal Court refusing to stay the shippers’ action. He noted that, in enacting section 46, Parliament had adopted a provision respecting exclusive jurisdiction clauses similar to Article 21 of the Hamburg Rules, which Canada had not yet implemented in its domestic law.
[49]He held that, under English private international law, the conflict between subsection 46(1) and the common-law rule respecting exclusive jurisdiction clauses was to be resolved by the proper law governing the interpretation and enforcement of the contract. The parties had agreed that any disputes arising from the contract were to be determined by English law, and English conflict of laws rules permit parties to specify the proper law of the contract. Accordingly, he reasoned, English private international law required the Court to give effect to the exclusive jurisdiction clause in this case, in the absence of strong reasons for not so doing.
[50]Lord Justice Longmore regarded section 46 as an insufficient basis for staying the carriers’ English proceedings, on the ground that (at paragraph 24):
. . . no English court would expect a foreign court to grant a stay by reason of any provision of English law, if an action was proceeding in that foreign court by virtue of an agreement, governed by the law of that court, that proceedings were to be brought in the courts of that country. Conversely, an English court would hope that a decision to restrain an action brought in England, pursuant to an exclusive jurisdiction clause in a contract governed by English law, would be respected by any foreign court.
[51]For similar reasons, he was prepared to reinforce the refusal of a stay with an anti‑suit injunction, stating that this was not an attack on the Canadian Parliament or courts because it only restrained the shippers if they elected to pursue the proceeding in Canada in breach of the contract. Moreover, he added, granting the injunction would help to avoid the unattractive prospect of parallel proceedings on the same claim, with the potential for different results.
[52]In concurring reasons, Lord Justice Rix said (at paragraph 54) that the principles governing the exercise by the English courts of their residual discretion not to give effect to a contractual exclusive jurisdiction clause “if the interests of justice demand otherwise” are analogous to those respecting the identification of the more convenient forum. Turning to subsection 46(1), he noted that the Federal Court had not treated the exclusive jurisdiction clause as a factor in its forum non conveniens analysis.
[53]Lord Justice Rix considered the argument advanced by the shippers that subsection 46(1) reflected a growing international consensus, evidenced by the Hamburg Rules, respecting exclusive jurisdiction clauses. The argument was that considerations of international comity militated against granting the anti‑suit injunction, as an exception to the common-law principle giving primacy to party autonomy in the selection of an exclusive forum.
[54]One of the grounds on which Lord Justice Rix rejected this argument was a statement by Justice Sopinka in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, at page 934, to the effect that, as a matter of comity, a Canadian court would respect a decision of a foreign court to assume jurisdiction over a matter on the basis of principles broadly conforming to those of Canadian private international law. Conversely, a Canadian court would not respect a decision of a foreign court to assume jurisdiction on a basis which was inconsistent with those principles and would expose a potential litigant in a Canadian court to an injustice.
[55]Lord Justice Rix inferred (at paragraph 81) from Justice Sopinka’s reasons that Canadian law “would also understand without offence” the anti‑suit injunction granted in this case by the courts in England, applying the proper law of the contract, to restrain the shippers from seeking a remedy in Canada, where, as an exception to the rule normally applied in Canada, legislation directs Canadian courts not to give effect to a foreign exclusive jurisdiction clause agreed to by the parties.
(ii) Subsection 46(1)
[56]On the basis of submissions to the Parliamentary committees, and statements made in the House of Commons Debates, it would appear that section 46 of the Marine Liability Act was primarily enacted to protect Canadian exporters and importers from having to litigate claims against carriers in a foreign forum where the expense may be prohibitive. When applicable, section 46 provides a litigant with the option of pursuing a claim in a competent court in Canada, despite the exclusive foreign jurisdiction clause in the contract of carriage.
[57]Particular concern was expressed in the parliamentary proceedings that small-to medium‑sized Canadian shippers and consignees do not have as much bargaining power as large shipowners in the negotiation of the terms of the contract: exclusive jurisdiction clauses are normally inserted in the interests of the carrier. Since Canada is a significant trading nation, the interests of Canadian exporters and importers are a matter of legitimate public concern.
[58]Thus, in his submissions to the House of Commons Standing Committee considering a Bill containing what became section 46, Mr. James Gould, the then-President of the Canadian Maritime Law Association, stated that the Association supported the clause because:
. . . it provides Canadian claimants with an option—and it’s just that, an option—to sue or arbitrate in Canada in circumstances in which there is a substantial connection with Canada. It would provide an advantage to Canadian exporters and importers whose only other option might be to abandon their claims or sue or arbitrate claims in a foreign jurisdiction.
Particularly, advancing low or medium‑sized claims can be subject to very significant inconvenience and disproportionate cost if one is forced to litigate or arbitrate in a foreign jurisdiction. . . .
If the jurisdiction clause [i.e. section 46] is not retained, the present situation will continue, keeping Canadian importers and exporters at a significant disadvantage, I think, and that would only benefit foreign shipowners and operators.
(Canada, House of Commons, Standing Committee on Transport and Government Operations. Evidence (27 March 2001), at 12:05 and 12:10.)
And, in an exchange with a representative of ship‑owning interests, Mr. Marcel Proulx, M.P. said:
I assume clause 46 was included to avoid situations where Canadian consumers, regardless of their size, would have to incur exorbitant costs to defend or institute proceedings against one of your clients abroad. That must be the reason, at least in part, for this provision.
(Canada, House of Commons, Standing Committee on Transport and Government Operations. Evidence (27 March 2001), at 11:40.)
It is clear from the exchange that “Canadian consumers” refers to Canadian shippers of goods.
[59]The position of the proponents of section 46 was well captured in the House of Commons by Mr. Norman Doyle, M.P. who said:
Indeed a culture has grown up that sees most of these disputes resolved in British boardrooms and in British courts. That suits the big shipping lines and the British legal profession just fine. However I would submit that a small Canadian exporter would be badly outclassed going up against the big boys in that kind of a setting. . . .
(House of Commons Debates, 37th Parliament, 1st Session, No. 058, May 9, 2001, at 16:45.)
[60]Some of the above statements may need to be read in light of the fact that shippers generally insure the cargo and that, as in the present case, the insurers are the real litigants. Nonetheless, the principal policy objective of section 46 would be advanced if insurers of the goods of Canadian shippers and consignees were not forced by an exclusive jurisdiction clause to exercise their subrogated rights outside Canada.
[61]Allowing insurers to sue in Canada may reduce the cost of litigation and thus improve their prospects of recouping the amount paid on a claim by the shippers or consignees. In theory, these reduced costs of doing business should be reflected in the premiums payable by Canadian shippers or consignees, thereby either making Canadian exports more competitive or reducing the final price paid by the consumer in Canada for imported goods.
[62]Section 46 should also be seen in an international context. It was described in the parliamentary proceedings as moving Canada closer to adopting in domestic law the Hamburg Rules which provide a uniform international legal framework for the carriage of goods by sea. The Hamburg Rules are given the force of law in Canada by Schedule 4, of the Marine Liability Act. However, this Schedule only comes into force on a date to be fixed by the Governor in Council on the recommendation of the Minister of Transport, who must consider the question every five years: section 44. No date has been fixed yet.
[63]Section 46 is similar, but not identical, to article 21 of the Hamburg Rules. For example, article 21 permits a claimant to commence proceedings in a forum on the ground that the defendant has a place of business in the jurisdiction but, unlike section 46, only if that is the defendant’s principal place of business or, failing that, habitual residence.
[64]Provisions analogous to section 46 have been enacted by other countries, including Australia, New Zealand, South Africa, the four Nordic countries of Denmark, Finland, Norway and Sweden, and the People’s Republic of China, which have not implemented the Hamburg Rules in their domestic law.
[65]While section 46 is designed to redress a perceived power imbalance between shipowners and shippers by favouring shippers, it only does so to the extent of providing claimants with the option of instituting proceedings in a Canadian forum. It does not require them to litigate in Canada.
[66]Unlike legislation in Australia (Carriage of Goods by Sea Act, 1991 [No. 160, 1991], subsection 11(2)) and New Zealand (Maritime Transport Act 1994 [1994/104], section 210(1)), section 46 does not state that foreign exclusive jurisdiction clauses are null and void or of no effect when there is a specified Canadian connection. Nor, as already noted, does section 46 direct a court in Canada to exercise its statutory jurisdiction when the claimant establishes one of the statutory connecting factors.
(iii) Clause 25 of the contract
[67]Two points should be made here. First, the provision in clause 25(1) naming English law as the law applicable to disputes arising under it is unaffected by section 46, which deals only with foreign exclusive jurisdiction clauses.
[68]Second, clause 25(2) provides that any provision in the contract which is “inconsistent with any applicable international convention or national law which cannot be departed for [sic] private contract” shall, to that extent, be null and void. However, this provision does not apply in this case.
[69]The adjective “applicable” qualifies “national law” as well as “international convention.” In this context, “applicable national law” refers to the proper law of the contract. This terminology is found in Article 4 of the EEC’s [European Economic community] Convention on the Law Applicable to Contractual Obligations (80/934/EEC) (the Rome Convention), which was largely incorporated into the law of the United Kingdom by the Contracts (Applicable Law) Act 1990 [1990, c. 36]. English law is the “proper” or “applicable” national law governing the contract in the present case by virtue of clause 25(1), and there is no material inconsistency between that law and the contract.
(iv) Conclusions
(a) the English judgments
[70]Three principal considerations favour a Canadian court treating the English judgments as relevant in a forum non conveniens analysis: international comity, the avoidance of parallel proceedings on the same matter, and problems of recognition in the event that the parallel proceedings produce different results. Minimizing litigation, with its attendant costs and complications, is good public policy.
[71]It may seem somewhat odd to suggest that the Federal Court should take the English judgments into account in a forum non conveniens analysis in this case. After all, the English courts refused to stay the carriers’ English proceedings without, apparently, giving any weight to the judgments of the Federal Court refusing a stay to the carriers on the ground that it had not been demonstrated to be forum non conveniens. Comity should be a two‑way street.
[72]Two considerations may alleviate this concern. First, if the English judgments are relevant in the forum non conveniens analysis, as on the facts of this case I conclude that they are, I have treated them as only one of several factors to be taken into account in determining how the interests of justice, practicality, and efficiency are best served. Second, the English courts extended comity to the Canadian Parliament’s enactment of subsection 46(1) in that they were very mindful of the delicate problem that it posed, even though, having carefully considered the subsection, the English courts decided that it did not represent “strong reasons” for departing from the normal rule that exclusive jurisdiction selection clauses should be given effect.
[73]It may also be said in support of the shippers’ position that if the carriers in this case end up having to conduct litigation on the same issues in both England and Canada, they will have been the authors of their own misfortune. They could have defended the shippers’ action in the Federal Court, instead of commencing their own, subsequent, proceeding in London. However, in commencing a proceeding in London, the carriers were merely exercising a valid contractual right for which they had bargained.
[74]As noted at paragraph 54 of these reasons, the approach of Canadian law to comity in the context of identifying the more convenient forum was authoritatively stated by the Supreme Court of Canada in Amchem Products, at pages 913‑915. In the present case, the question is whether the English courts have, in the words of Justice Sopinka (at page 915):
. . . departed from our own test of forum non conveniens to such an extent as to justify our courts in refusing to respect the assumption of jurisdiction by the foreign court and in what circumstances such assumption amounts to a serious injustice.
[75]Section 46 aside, a Canadian court could normally be expected to have reached the same conclusion as the English courts. That is, if the applicable law of the contract had been Canadian, a court in Canada would, in the absence of strong reasons, have given effect to a clause in the contract specifying a court in Canada as the exclusive forum, in the interests of commercial certainty and on the basis of the principle of party autonomy in determining the terms of the contract: see Amchem, at page 921, and Z.I. Pompey, at paragraph 20.
[76]Parenthetically, I note that the Supreme Court of the United States has moved closer to the position at common law in England and Canada by regarding foreign exclusive jurisdiction clauses as presumptively valid: Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995); see further Robert Force and Martin Davies, “Forum Selection Clauses in International Maritime Contracts” in Martin Davies (ed.), Jurisdiction and Forum Selection in International Maritime Law: Essays in Honor of Robert Force (The Hague: Kluwer Law International, 2005) at pages 4‑8; and William Tetley, “Jurisdiction Clauses and Forum Non Conveniens in the Carriage of Goods by Sea”, ibid., at pages 24‑38.
[77]Not every difference between Canadian law and foreign law on the appropriate forum for adjudicating a dispute will warrant a refusal by a court in Canada, when conducting a forum non conveniens analysis, to respect the assertion of jurisdiction by a foreign court. The question is whether the modification made to Canadian private international law by section 46 is of such significance as to exclude, on the facts of the present case, considerations of comity and the practical problems to which parallel proceedings may give rise.
[78]In my view, the critical facts of this case are that the shippers, the consignees, the goods, and the ports of loading and discharge, have no connection to Canada. It is true that section 46 confers jurisdiction on a competent Canadian court over the shippers’ claim, since OT Africa Line Ltd. has a “place of business, branch or agency” in Canada, and the contract was made here. However, it is also relevant to ask whether it would frustrate the policy underlying section 46 for a Canadian court, on the facts of this case, to afford some respect to the English courts’ judgments by factoring them into a forum non conveniens analysis.
[79]The principal policy objective of section 46 is the protection of the interests of Canadian exporters and importers, and, I would add, their insurers, by diminishing or eliminating the legal effect of a contractual clause requiring them to litigate any dispute in a foreign forum. The legislative record does not suggest that Parliament was also concerned to protect the interests of Canadian insurers when insuring non‑Canadian goods shipped from and to ports outside Canada by non‑Canadian shippers.
[80]While section 46 preserves the jurisdiction of Canadian courts in proceedings brought by foreign shippers and consignees, it does not follow that, in deciding whether to exercise its jurisdiction, a court should depart from its normal practice of affording respect to foreign judgments. On the facts of the present case, including the dominant role being played in the litigation by the Canadian insurers of the cargo, it would not frustrate Parliament’s purpose to take the English judgments into account in the course of determining the more convenient forum.
[81]In short, section 46 does not expressly provide that, when determining whether it is the more convenient forum, a Canadian court in which a claimant elects to proceed should assign no weight to the assertion of jurisdiction by a foreign court, which it has supported by an anti‑suit injunction. Nor can it be said that Parliament implicitly so directed in a fact situation such as this, where, to give a foreign judgment weight, would not frustrate the policies underlying section 46.
[82]Nor do I think it fatal to the application of the comity principle that the shippers had commenced proceedings in Canada before the carriers sought an anti‑suit injunction in England, since, in so doing, they were merely exercising their contractual rights according to the proper law of the contract. In any event, the shippers have not indicated whether they propose to pursue their action in the Federal Court in breach of the anti‑suit injunction issued against them in England. Moreover, to attach much significance to which party is the first to file proceedings may simply result in rewarding the party who obtains judgment first: Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 173 D.L.R. (4th) 498 (B.C.C.A.), at paragraph 40.
[83]In my opinion, in the circumstances of this case, section 46 has not ousted the principles of international comity set out in Amchem Products. Accordingly, weight should be given to the English judgments asserting their jurisdiction in order to determine if, compared to the High Court in London, the Federal Court is forum non conveniens.
(b) clause 25(1)
[84]For similar reasons, to give weight in this case to the parties’ choice of forum is not inconsistent with the policy underlying section 46. If Parliament had intended to invalidate exclusive jurisdiction clauses for all purposes, it could have declared them to be void or of no effect, as, for example, the Australian and New Zealand statutes do.
[85]The freedom of parties in international trade to determine the terms of their contracts is a fundamental, but not absolute, tenet of Canadian commercial law and has been recognized internationally in Article 3 of the Rome Convention. Indeed in another context, Prothonotary Hargrave has stated that subsection 46(1) should be strictly construed because it limits contractual freedom: Dongnam Oil & Fats Co. v. Chemex Ltd. (2004), 264 F.T.R. 264, at paragraph 17.
[86]Hence, in the absence of either express words or an implication necessary to give effect to the policy underlying section 46, I would include the parties’ exclusive jurisdiction clause in the factors to be considered in the forum non conveniens analysis. No mention is made of this issue in the reasons of the Federal Court.
[87]As I have already noted, this case does not involve Canadian shippers or Canadian goods, but a claim subrogated to Canadian insurers in respect of foreign shippers and foreign goods. In my opinion, it would not frustrate the policy of section 46 if weight was given in this case, for forum non conveniens purposes, to the exclusive jurisdiction clause, as well as to the English judgments.
[88]For the purpose of disposing of this appeal, I need not decide whether the assumption of jurisdiction by the English courts and the parties’ choice of an exclusive forum should be regarded as not only relevant factors in the forum non conveniens analysis, but also virtually conclusive. Nor do I have to decide whether these factors should be given weight when the shippers, the consignees or the goods are Canadian. However, I am inclined to think that they should not, since that would permit litigants to frustrate the policy of section 46 of protecting Canadian exporters and importers, by instituting proceedings in the forum specified in the contract.
(c) forum non conveniens
[89]Having concluded that, as a matter of law, the English judgments and the choice of forum clause must be taken into account in the forum non conveniens analysis, I must now consider whether the Federal Court is forum non conveniens.
[90]On the facts of this case, Liberia would appear to provide the most “natural” forum for the adjudication of the shippers’ claim, since the alleged loss was reported, and investigated, after the ship docked there and it is where most of the witnesses appear to reside. However, it does not follow from this that another jurisdiction, England, may not provide a more appropriate forum than the Federal Court.
[91]Since the Federal Court has assumed jurisdiction over the shippers’ claim, the burden is on the carriers to show that they should be granted a stay on the ground of forum non conveniens: Amchem Products, at page 921; Ford Aquitaine Industries, at paragraph 71. However, in view of the parties’ selection of the applicable law and the forum, a finding of forum non conveniens may not be made so reluctantly as it often now appears to be in the absence of such clauses: see Jeffrey A. Talpis and Shelley L. Kath, “The Exceptional as Commonplace in Québec Forum Non Conveniens Law: Cambior, a Case in Point” (2000), 34 R.J.T. 761, at pages 790‑794.
[92]I adopt the list of connecting factors relevant to a forum non conveniens inquiry set out in Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, at paragraph 71.
(a) residence of the parties, witnesses and experts: OT Africa Line Ltd., the principal defendant in the Federal Court action, has its head office in England, and a branch office in Toronto. Neither the shipper nor the consignee, the nominal plaintiffs, resides in England or Canada. While not technically parties to the Federal Court action, the insurers of the cargo are the “true” plaintiffs and reside in Toronto. Most of the witnesses appear to be in Monrovia, although OT Africa Line Ltd. says that an employee whom it will probably call to testify resides in London. There is no evidence respecting the residence of the officers and crew of the ships that carried the goods from New York to Monrovia.
(b) the location of the material evidence: presumably in Liberia.
(c) place where the contract was negotiated and executed: the contract was made, and the ocean freight paid, in Canada. In other respects, the contract was performed outside Canada and England.
(d) existence of proceedings pending between the parties in another jurisdiction: the carriers’ action for a declaration and damages against the shippers and the insurers is pending in London, thus raising the possibility of parallel proceedings and conflicting decisions if the shippers’ claim is allowed to proceed in the Federal Court. While the carriers commenced their litigation in London after the shippers’ instituted their action in the Federal Court, the carriers were exercising their contractual rights in accordance with the proper law of the contract.
(e) location of the defendant’s assets: OT Africa Line Ltd. keeps its corporate records, books, and accounts in England. While it has a branch office in Toronto, there is no evidence that any assets are located there.
(f) applicable law: English law. Neither party attached significance in this context to clause 24 of the contract of carriage. As relevant to the facts, clause 24 states that, where the bill of lading covers the transportation of goods to or from ports in the United States, it is subject to the United States’ Carriage of Goods by Sea Act [46 U.S.C. App. § 1300 (2000)], which is incorporated into the contract.
(g) advantages conferred on the plaintiff by its choice of forum: the saving of expense for the shippers’ Toronto‑based insurer. There is no evidence of any juridical advantage accruing to the shippers or their insurers from litigating the claim in the Federal Court, rather than in the English High Court.
(h) interests of justice: I would include here the possibility of parallel proceedings if the shippers’ action in the Federal Court continues, as well as the parties’ agreement that English law governs any disputes and that the High Court in London is the exclusive forum.
(i) interests of the parties: the only consideration here would seem to be one of cost. It will presumably be more expensive for the shippers’ insurers to have to defend the carriers’ action in London than to assert their subrogated rights in the Federal Court. For similar reasons, it is in the carriers’ financial interest to proceed with their action in London, rather than to defend the action brought in the name of the shippers in Canada. Without knowing more about the insurers or their business, it is difficult to assess the degree of hardship to them of having to litigate in London.
(j) the need to have the judgment recognized in another jurisdiction: if the shippers were successful in their action in Canada, the judgment might have to be enforced in England if the carriers have no assets here. This would require the English courts to recognize a judgment obtained in a proceeding pursued in breach of an anti‑suit injunction. It is very doubtful whether, in these circumstances, an English court would recognize the Canadian judgment, especially, of course, if the carriers obtained judgment in London on their action.
[93]When considering whether the forum chosen by the plaintiff is forum non conveniens, no one factor is to be regarded as determinative: Spar Aerospace, at paragraph 71. All should be weighed in the context of the particular case; their relative importance may depend on the context of the dispute. Although there are few indications in the record about the precise issues involved in the shippers’ claim, it would seem from the contradictory reports as to whether the cargo was short that facts are in dispute.
[94]Considering, first, the factors favouring Canada, I cannot attach much weight to the facts that the contract was made and the ocean freight was paid in Toronto, since they appear to be irrelevant to the issues likely to be in dispute in the cargo claim. Because the parties specified that English law was the proper law, it cannot be inferred from the fact that the contract was made here that they intended Canadian law to apply to the interpretation and enforcement of the contract.
[95]Of potentially more importance is the fact that the cargo insurers are based in Toronto. However, there is nothing in the record to indicate that, if forced to litigate in London, they would suffer great prejudice or be denied an effective remedy. Without more information, I would not be prepared to infer this from the relatively small amount of the claim.
[96]In my opinion, while the factors connecting the dispute to Canada are minor, those connecting it with England are cumulatively much more significant.
[97]First, the English judgments implicate the principle of comity, raise the possibility of parallel proceedings, and make the recognition in England of a judgment by the Federal Court potentially problematic.
[98]Second, taking into account the parties’ choice of the High Court in London as the exclusive forum respects the principle of freedom of contract, promotes commercial certainty, and does not frustrate the policy objectives of section 46.
[99]Third, it is generally more convenient to litigate in a forum in the jurisdiction whose law governs the dispute. Normally, counsel prefer to argue cases, and courts to decide them, on the basis of the law with which they are most familiar. In this case, the parties have chosen English law. However, without knowing more about the issues in dispute respecting the alleged loss of the cargo, I cannot assess precisely the significance of the applicable law factor, especially given the similarities of English and Canadian law governing the carriage of goods by sea.
[100]Fourth, OT Africa Line Ltd. has its head office in London, where it keeps its corporate records, books and accounts; it also may need to call one of its London‑based employees to testify about the company’s practice respecting the discharge of cargo.
E. CONCLUSION
[101]For these reasons, I am persuaded that the Federal Court is a less convenient forum than the High Court in London. In these circumstances, the interests of justice will be better served if the shippers’ action in the Federal Court is stayed. The stay is conditional on the carriers pursuing, without delay, their proceeding in the English High Court for a declaration that they are not liable to the shippers for the partial loss of the cargo. The shippers are at liberty to ask the Federal Court to consider lifting the stay in the event that the shippers do not observe this condition.
[102]Accordingly, I would allow the carriers’ appeal with costs, set aside the orders of the Federal Court, and grant a stay of the shippers’ action in the Federal Court, conditional on the carriers pursuing, without delay, their action in the English High Court.
Décary J.A.: I agree.
Sharlow J.A.: I agree.