Jian Sheng Co. v. Great Tempo S.A. et al., (1998) 225 N.R. 140 (FCA)

• Judge: Pratte, Décary and Linden, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 14, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 225 N.R. 140 (FCA)

Jian Sheng Co. v. Great Tempo S.A. (1998), 225 N.R. 140 (FCA)

MLB headnote and full text

Temp. Cite: [1998] N.R. TBEd. AP.024

Jian Sheng Co. Ltd. (plaintiff/appellant) v. Great Tempo S.A., Sinotrans Canada Inc., and the Owners and Others interested in the Ship "Trans Aspiration" (defendants/respondents)

(A-442-97)

Indexed As: Jian Sheng Co. v. Great Tempo S.A. et al.

Federal Court of Appeal

Pratte, Décary and Linden, JJ.A.

April 14, 1998.

Summary:

Cargo on the Trans Aspiration was lost overboard while in transit from British Columbia to Hong Kong. The Trans Aspira­tion was owned by the defendant, Great Tempo. The plaintiff, the notify party, com­menced an action in British Columbia, seek­ing damages for loss and damage to the cargo. The booking note provided for arbi­tration in Vancouver. The bill of lading provided that disputes would be resolved where the carrier had its principal place of business, but did not identify the carrier. Great Tempo, whose business was managed from Hong Kong, sought to stay the Cana­dian proceedings, claiming that it was the carrier and Hong Kong was its principal place of business.

A Prothonotary of the Federal Court of Canada, Trial Division, in a judgment re­ported 129 F.T.R. 55, refused to grant a stay where the jurisdiction clause in the bill of lading was void for uncertainty. Great Tempo appealed.

The Federal Court of Canada, Trial Divi­sion, in a judgment reported 132 F.T.R. 166, allowed the appeal and granted a stay of proceedings on the ground that Great Tempo was the carrier and Hong Kong was its principal place of business. The plaintiff appealed.

The Federal Court of Appeal allowed the appeal, set aside the stay and restored the order of the Prothonotary. Great Tempo, assuming it was the carrier, failed to estab­lish that its principal place of business was Hong Kong. Accordingly, the jurisdiction clause did not apply. The court disagreed with the Prothonotary that the jurisdiction clause was void for uncertainty.

Carriers - Topic 4505

Carriage of goods - General principles - Identity of carrier - The Federal Court of Appeal stated that "in shipowners' bills of lading, there is a presumption that the shipowner is the carrier. In charterers' bills of lading, on the other hand, the presump­tion is that the demise charterer is the carrier. Any other can be the carrier only where the above presumptions have been rebutted, and such rebuttal occurs only when there is evidence that such other has actually assumed the role of carrier under the contract of carriage with the shipper." - See paragraph 16.

Carriers - Topic 4581

Carriage of goods - Bills of lading - Gen­eral - Cargo on a ship was lost over­board while in transit from British Colum­bia to Hong Kong - The ship was owned by Great Tempo - The plaintiff, the notify party, sued in British Columbia for dam­ages for cargo loss and damage - The booking note provided for arbitration in Vancouver - The bill of lading provided that disputes would be resolved in the jurisdiction where the carrier had its prin­cipal place of business - Great Tempo, whose business was managed in Hong Kong, sought to stay the Canadian pro­ceedings on the ground that Hong Kong had jurisdiction - The Federal Court of Appeal held that a stay was inappropri­ate - Assuming that Great Tempo was the car­rier, the assertion that 100% of its business was conducted in Hong Kong was insuffi­cient to meet the stringent test for estab­lishing where its principal place of busi­ness was - Great Tempo could have pro­vided information such as the location of its principal place of business, the names of officers and where control over the employees and the business was exer­cised - Accordingly, the jurisdiction clause did not apply.

Conflict of Laws - Topic 9286

Practice - Stay of proceedings - Where action should not be tried in Canada - [See Carriers - Topic 4581 ].

Shipping and Navigation - Topic 1944

Carriage of goods - Bills of lading - Effect of - [See Carriers - Topic 4581 ].

Cases Noticed:

Aratra Potato Co. v. Egyptian Navigation Co.; Ship El Amria, [1981] 2 Lloyd's Rep. 119 (C.A.), refd to. [para. 7].

Ship Rewia, Re, [1991] 2 Lloyd's Rep. 325 (C.A.), refd to. [para. 7].

Owners of Cargo on Ship Eleftheria v. Ship Eleftheria, [1969] 1 Lloyd's Rep. 237 (Adm.), refd to. [para. 7].

Can-Am Produce and Trading Ltd. v. Owners & All Others interested in Ship Senator et al. (1996), 112 F.T.R. 255 (T.D. Protho.), refd to. [para. 7].

Atlantic Shipping and Trading Co. v. Dreyfus (Louis) and Co., [1922] 2 A.C. 250 (H.L.), refd to. [para. 7].

Ship M/V Seapearl and Patmos Navigation Co. v. Seven Seas Dry Cargo Shipping, [1983] 2 F.C. 161; 43 N.R. 517 (F.C.A.), refd to. [para. 10].

Spiliada Maritime Corp. v. Cansulex Ltd., [1987] 1 Lloyd's Rep. 1; 71 N.R. 372 (H.L.), refd to. [para. 10].

Paterson Steamships Ltd. v. Aluminium Co. of Canada, [1951] S.C.R. 852, refd to. [para. 16].

Associated Metals and Minerals Corp. v. Ship Evie W, Aris Steamship Co. and Worldwide Carriers Ltd., [1980] 2 S.C.R. 322; 31 N.R. 584, refd to. [para. 16].

Cormorant Bulk-Carriers Inc. v. Canficorp (Overseas Projects) Ltd. (1984), 54 N.R. 66 (F.C.A.), refd to. [para. 16].

Carling O'Keefe Breweries of Canada Ltd. v. CN Marine Inc. et al., [1990] 1 F.C. 483; 104 N.R. 166 (F.C.A.), refd to. [para. 16].

Union Carbide Corp. et al. v. Fednav Ltd. et al. (1997), 131 F.T.R. 241 (T.D.), refd to. [para. 16].

Canastrand Industries Ltd. v. Ship Lara S et al. (1993), 60 F.T.R. 1 (T.D.), refd to. [para. 17].

Lantic Sugar Ltd. v. Blue Tower Trading Corp. et al. (1993), 163 N.R. 191 (F.C.A.), refd to. [para. 18].

Ship Polzeath, Re, [1916] P. 241 (C.A.), refd to. [para. 21].

Ardennes (S.S.)(Owners of Cargo) v. Ardennes (S.S.)(Owners), [1950] 2 All E.R. 517 (K.B. Div.), refd to. [para. 23].

Leduc & Co. v. Ward (1888), 20 Q.B.D. 475, refd to. [para. 24].

Ship Berkshire, Re, [1974] 1 Lloyd's Rep. 185 (Q.B. Adm. Ct.), refd to. [para. 35].

Fiducie Prêt v. Canada Mortgage and Housing Corp. (1991), 136 N.R. 129 (F.C.A.), refd to. [para. 39].

Statutes Noticed:

United Nations Convention on the Carriage of Goods by Sea, 1978, art. 21 [para. 8].

Authors and Works Noticed:

Tetley, Marine Cargo Claims (3rd Ed. 1988), p. 242 [para. 17].

Todd, P., Modern Bills of Lading (2nd Ed. 1990), p. 96 [para. 35].

Counsel:

Douglas G. Schmitt, for the appellant;

Thomas S. Hawkins, for the respondents.

Solicitors of Record:

McEwen, Schmitt & Co., Vancouver, British Columbia, for the appellant;

Campney & Murphy, Vancouver, British Columbia, for the respondents.

This appeal was heard on March 26, 1998, at Vancouver, B.C., before Pratte, Décary and Linden, JJ.A., of the Federal Court of Appeal.

On April 14, 1998, Décary, J.A., delivered the following judgment for the Court of Appeal.