MARITIME LAW |
Contracts |
Stella Jones Inc. v. Mariana (The)
A-629-01
2002 FCA 215, Nadon J.A.
24/5/02
8 pp.
Appeal from Motions Judge's decision concluding that terms, conditions of contract of carriage entered into by parties did not include "Centrocom" arbitration clause, dismissing appellant's motion for stay of proceedings commenced by respondents--On return trip from Syria to Canada, with rejected items, fire aboard Mariana causing damage to cargo of telephone poles--Respondents, owners and insurers of cargo, commenced action against appellant, owners of vessel--Motions Judge held return voyage subject to same terms, conditions as those agreed to by parties for outbound voyage from Canada to Syria--Appeal dismissed-- Motions Judge did not err in concluding arbitration clause did not form part of terms, conditions agreed to by parties-- Terms, conditions of return voyage same as those originally agreed upon by parties--Booking note did not contain arbitration clause--Motions Judge found arbitration clause herein inserted as amendment to standard "Conline" bill of lading and "Conline" booking note; no evidence terms of arbitration clause ever signed, agreed to by plaintiff; defendant failed to discharge burden of proving arbitration clause in force and enforceable in accordance with terms of Commercial Arbitration Code--Thyssen Canada Ltd. v. Mariana (The), [2000] 3 F.C. 398 (C.A.) distinguished--If appellant intended to make contract of carriage subject to arbitration clause, should have made its intention known to respondent Stella Jones--Arbitration clause never agreed to by Stella Jones--Commercial Arbitration Act, R.S.C., 1985 (2nd Supp.), c. 17.