MARITIME LAW |
Practice |
Atlantic Cement Carriers Ltd. v. Atlantic Elm (The)
T-1847-01
2002 FCT 761, Morneau P.
9/7/02
11 pp.
Motion by defendant under Federal Court Act, s. 50(1)(b) for stay of proceedings (action following sinking of barge Portland Star, loss of cargo on board owned by St. Lawrence Cement) which, according to defendant, ought to be heard by High Court of Justice in London, England pursuant to Towcon agreement--Motion allowed--Marine Liability Act, s. 46 not applicable herein as pith and substance of agreement for towage by tug Atlantic Elm of barge Portland Star-- Application of Trans-Continental Textile Recycling Ltd. v. Erato, [1996] 1 F.C. 404 (T.D.) with respect to undertaking clause to submit dispute to foreign court--Application of principles set out in Eleftheria, The, [1969] 1 Lloyd's Rep. 23 (Adm.), applied in Anraj Fish Products Industries Ltd. v. Hyundai Merchant Marine Co. (2000), 262 N.R. 270 (F.C.A.)--Facts that evidence, witnesses likely to be located in Canada known or should have been known to plaintiff prior to entering into agreement; plaintiff did not raise any concerns over this question at time of negotiating Towcon agreement--English law applicable; not established English law differs from Canadian law--Although plaintiff connected to this Court by virtue of action herein, also party to arbitration proceedings launched by St. Lawrence Cement, party to newly launched claim by defendant in England--Plaintiff's connection to this Court therefore diluted--No evidence to support conclusion defendant's main motive in seeking stay of proceedings to attempt to seek procedural advantage--Fact defendant has sued plaintiff in England under agreement, clause 25 demonstrating its desire to have trial in England--No evidence plaintiff will be prejudiced by having to litigate in foreign court--In addition, plaintiff taken to have known of jurisdiction selection clause at time it negotiated, signed agreement--Federal Court Act, R.S.C., 1985, c. F-7, s. 50(1)(b)--Marine Liability Act, S.C. 2001, c. 6, s. 46.