Napa v. Abta Shipping Co.
T-387-98
Morneau P.
20/11/98
20 pp.
Motion pursuant to Federal Court Rules, r. 208 and Federal Court Act, s. 50 for Court to stay action brought by plaintiffs in Federal Court in favour of Cyprus as most appropriate forum for hearing matter-Vessel Flare sank in Gulf of St. Lawrence, in Canadian waters-Crew consisting of twenty-five members, mostly Filipino, only four of whom survived-Three Filipino and one Yugoslav survivor among plaintiffs-Rule in Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897: existence of more appropriate forum must be clearly established to displace forum selected by plaintiff-Defendants putting forward four factors to this end: (1) plaintiffs' employment contracts including clause designating Cyprus as forum for settling any disputes; (2) Flare flying Cypriot flag and documents pertaining to vessel issued by authority of government of Cyprus; (3) defendants carrying on business in Cyprus; (4) fault alleged against defendants originating in Cyprus-Motion dismissed-(1) Far from clear Cyprus has become designated forum for dispute such as one at bar-Individual contracts tend to suggest law of Philippines rather than law of Cyprus-Consequently, if Philippine law must prevail, Federal Court as competent to apply Philippine law as courts of Cyprus-(2) and (3) Contradictory evidence submitted by plaintiffs (flag only flag of convenience; true owners Greek nationals whose business conducted in Greece and not Cyprus; true manager of ship allegedly Greek), therefore defendants' evidence concerning these two factors can only have relative value-Furthermore, it appeared nearly all documents in question not issued from Cyprus but from places as varied as London, South Korea, Cuba and Greece-(4) Allegation initially based on premise Cyprus really defendants' principal place of business, premise seriously called in question by plaintiff's evidence-And it appeared from fault alleged against defendants by plaintiffs that such fault could hardly be seen as occurring only at that place of business-Although some key witnesses reside outside Canada, ship went down in Canadian waters and people participating in rescue operation apparently Canadian-Cyprus does not have documentary disclosure rules as liberal as Canada, liability limit in Cyprus ten times lower than in Canada-It cannot therefore be said Cyprus would not occasion any legal gains for defendants or losses for plaintiffs-Defendants have not discharged burden of proof of persuading Court that in circumstances Cyprus should be seen as most appropriate forum for hearing plaintiffs' action-Taking into account all factors listed in r. 400(3), and in particular factors mentioned in r. 400(3)(a), (c) and (g), fair and reasonable to award plaintiffs costs at maximum of column V at Tariff B in each of two cases concerned here-Federal Court Rules, 1998, SOR/98-106, rr. 208, 400(3)-Federal Court Act, R.S.C., 1985, c. F-7, s. 50.