Sidmar N.V. v. Fednav International Ltd.
A-807-96
Marceau J.A.
25/2/97
11 pp.
Appeal from order declaring shippers' actions against carrier for loss or damage to cargo carried by sea properly and in due time brought in Federal Court, and dismissing carrier's application for judgments dismissing actions on basis time barred, prescribed-Carrier contracted to transport cold rolled steel in coils from Belgium to U.S.A.-Bill of lading stipulating any action arising out of carriage of goods thereunder must be brought in Canadian courts within one year of delivery of goods at port of discharge-Carrier's agent authorizing extension of time to file suit, on condition action taken in U.S.A.-Actions in Canada commenced more than one year after cargo delivered at port of discharge, but within time specified in extensions granted by carrier-Hague-Visby Rules in force in Belgium applied to shipments in spite of paramount clause in bills of lading purporting to incorporate U.S. Carriage of Goods by Sea Act (COGSA)-Where pre-requisites for application of Hague-Visby Rules exist, Canadian court must apply them regardless of whether parties attempting by contract to have agreement subject to law of jurisdiction not recognizing them-Rules operate so that cannot be modified by contract to reduce liability-Limit of liability under U.S. COGSA lower than that imposed by Hague-Visby Rules-Rules expressly giving parties to contract authority to extend time to file suit as was done here-Rules indicating carrier can agree to surrender some or all of its rights, immunity in bill of lading, but make no such provision for shipper-Time extension agreements valid-No suggestion enforceability of change of forum clause at root of acceptance by carrier to extend time-Other considerations more important to carrier i.e. three conditions listed before change of forum clause-Clause not so fundamental to agreement that whole should be struck down if part cannot stand-Hague-Visby Rules dictate disregard of change of forum condition if extension of time agreements part of contract of carriage-U.S. cases considering suit time extension agreements separate from contracts of carriage by sea to which related since once cause of action arising shipper no longer at mercy of carrier, distinguished-Right of action for damage to goods embodied in contract of carriage-Suit time limitation of one year imposed by Rules circumvented only because same provision fixing term authorizing parties to extend it-Extension of time part of Rules applicable to contract as amendment to it, and therefore retroactively part of contract itself-Provision of U.S. COGSA establishing suit time not containing similar proviso-Choice of forum provisions in time extension agreements null, void-Must be totally disregarded without affecting rest of document-Provisions of bills of lading establishing Canada as correct forum still apply, but suit time limitation of one year validly extended-Carriage of Goods by Water Act, S.C. 1993, c. 21, s. 7-Hague-Visby Rules, S.C. 1993, c. 21, Sch. I, Arts. III, V, X.