Brink’s Global Services Korea Ltd. v. Woowon Sea & Air Co. Ltd.

Brink’s Global Services Korea Ltd. v. Woowon Sea & Air Co. Ltd.
Court (s) Database
Federal Court Decisions
Date
2022-11-07
Neutral citation
2022 FC 1512
File numbers
T-122-21
Decision Content
Date: 20221107
Docket: T-122-21
Citation: 2022 FC 1512
Ottawa, Ontario, November 7, 2022
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
BRINK’S GLOBAL SERVICES KOREA LTD. AND
BRINK’S GLOBAL SERVICES INTERNATIONAL, INC.
Plaintiffs, Respondents in this Appeal
and
WOOWON SEA & AIR CO. LTD.
Defendants, Appellant in this Appeal
and
BINEX LINE CORP., JOHN DOE BINEX EMPLOYEE, JANE DOE BINEX EMPLOYEE AND OTHER PERSONS UNKNOWN TO THE PLAINTIFFS CURRENTLY OR FORMERLY EMPLOYED BY BINEX
Defendants, Respondents in this Appeal
and
A.P. MOLLER-MAERSK A/S AND
CANADIAN NATIONAL RAILWAY COMPANY
Third Parties
JUDGMENT AND REASONS
I. Nature of the matter
[1] This is an appeal of a decision dated April 20, 2022, now reported as Brink’s Global Services Korea Ltd. v. Binex Line Corp., 2022 FC 571, [Decision] made by Case Management Judge Aalto [CMJ] who dismissed a motion by the Appellant Woowon Sea & Air Co. Ltd. [Woowon] to stay this Federal Court action so that issues may be litigated in Korea.
[2] Woowon (along with the Binex Line Corp. parties) is a Defendant in the action but has not attorned to this Court’s jurisdiction. Woowon has its principal place of business in Korea and no physical presence in Canada although it has a longstanding agency relationship with the Binex Line Corp [Binex]. Woowon says this Court has no jurisdiction, and in the alternative asks the Federal Court to decline jurisdiction.
[3] Because it disputes the jurisdiction of this Court, Woowon has not filed a defence and pleadings are not closed. No discoveries or documentary exchange relating to the claim against Woowon have taken place.
[4] The underlying claim involves the shipment of 18,276.023 kilograms of silver ingots [the Cargo] with an estimated value of $10,262,242.37 USD on a container yard to container yard (CY/CY) basis from Busan, Korea to Prince Rupert (port of discharged changed to Vancouver) aboard the vessel GEORG MAERSK, with on-carriage by rail to Montreal, the whole pursuant to Multimodal Transport Bill of Lading number WSAMTR192351 [BOL] issued in Seoul on December 25, 2019 by Woowon.
[5] Woowon seeks a stay on the grounds that: (1) this Court lacks jurisdiction simpliciter over the claim, including subject matter jurisdiction and jurisdiction over Woowon, or alternatively, because the jurisdiction clause in the carriage terms selecting Korea ought to be enforced; and (2) the Court ought to decline jurisdiction over the claim in any event, based on the doctrine of forum non conveniens, and (3) the Plaintiffs have not established “strong cause” why the Korean courts are not appropriate to resolve the matters in dispute, given Korea is the forum identified in the underlying contract of carriage evidenced by the BOL.
[6] Woowon’s stay motion was successfully opposed by the Plaintiffs (Respondents here) namely Brink’s Global Services Korea Ltd. [BGS Korea] and its American sister company, Brink’s Global Services International Inc. [together, Brink’s]. Brink’s provides logistics and security solutions for the transport of high value cargo. Brink’s opposes this appeal.
[7] Woowon’s stay motion was also successfully opposed by the Defendants Binex and its unnamed employees (also Respondents here). Binex is incorporated under the laws of California. Binex is registered to do business and has an office in Ontario. Binex operates as an international transportation company, offering services including freight forwarding services. Binex opposes this appeal.
II. Facts
[8] The core facts are not in dispute, although given this is a preliminary motion filed before pleadings, document exchange and discoveries have been initiated between Woowon and Brink’s, certain matters require a more fulsome record before final determinations may be made. That said, determinations were and may be made on the basis of the record before the Court.
[9] In short, Simitomo Corporation purchased the Cargo from Korea Zinc. On January 1, 2019, Korea Zinc and BGS Korea entered into an International Valuables Transport Contract providing that BGS Korea would transport various shipments of silver from Korea to New York via Canada. In this case, and to fulfil its obligations towards Korea Zinc, BCG Korea engaged Ex Logistics Co., Ltd, [Ex Logistics], a freight forwarder, to arrange for the shipment; Ex Logistics Co. then retained Woowon which issued the BOL as the contracting carrier. Although Korea Zinc appears as shipper on the BOL, with the named consignee being Brink’s Canada Ltd FAO (which I assume to mean “for account of”) Sumitomo Corporation, neither Korea Zinc, Brink’s Canada Ltd nor Sumitomo Corporation are parties to the present action. In addition, the Defendant Binex appears as Notify Party under the BOL. Ex Logistics was a Defendant, however the claim against it was discontinued.
[10] As Woowon was a non-vessel operating carrier, it retained Maersk Line A/S [Maersk] as performing carrier to transport the Cargo from Busan to Montreal, the whole pursuant to Maersk Sea Waybill 588788299, showing Woowon as the shipper and Binex as the consignee; Maersk retained Canadian National Railway Company Limited [CN] for the on-carriage by rail from Vancouver to Montreal.
[11] Under its Sea Waybill, Maersk was obliged to and did generate a secret pick-up code which would allow for the release of the Cargo from the CN Railyard once the Cargo arrived in Montreal; Maersk provided the pick-up code to Binex (the consignee under its Sea Waybill) who would then transmit the pick-up code to Brink’s Canada Ltd (the consignee under the BOL) along with the original BOL once received.
[12] Maersk and CN are third parties in this action at the suit of Binex.
[13] On December 26, 2019, the Cargo left Korea on the ocean vessel bound for British Columbia. The vessel arrived in Vancouver, on January 7, 2020. On January 10, 2020, the Cargo was loaded onto a CN railcar destined for Montreal, where the container arrived on January 16, 2020.
[14] In the interim, on January 6, 2020, Maersk e-mailed the pick-up code to Binex. The transmission and reception of that email and subsequent access to it by thieves is the subject of ongoing investigations.
[15] On January 20, 2020, Oriental Cartage, a trucking company based in Quebec, received an email from “[email protected]” instructing it to pick up the Cargo from the CN railyard in Montreal. The email contained the secret pick-up code, and other information including the precise weight of the Cargo. Upon presentation of the pick-up code to it by Oriental Cartage, CN located the Cargo container in its Montreal railyard and released the Cargo to Oriental Cartage. Oriental Cartage transported the Cargo to a warehouse in LaSalle, Quebec, as per the instructions it received with the pick-up code. Oriental Cartage is neither a party nor third party in this action.
[16] The Cargo was never seen again, except for a small portion subsequently recovered.
[17] It is common ground the email sent to Oriental Cartage was part of a fraud. Person or persons unknown had obtained the pick-up code and other information in the email. At this stage in the proceedings it appears such unknown persons fraudulently used information obtained to instruct Oriental Cartage to obtain and transport the Cargo from CN’s railyard, to the warehouse in LaSalle.
[18] What we know at this point is the Cargo was not released to Brink’s or Brink’s Canada as should have happened.
[19] As a result of the stolen Cargo, Korea Zinc became indebted to Sumitomo for its value. Sumitomo was paid for its loss by Korea Zinc which assigned its rights to the Plaintiffs. Brink’s seeks to recover the amount paid and related costs in this action.
[20] Brink’s Statement of Claim was filed in Federal Court January 15, 2021. Binex filed its Statement of Defence on May 26, 2021. As noted, Binex also instituted third party proceedings dated June 9, 2021 against both Maersk and CN.
[21] Further proceedings on the Plaintiffs’ action await determination of the jurisdictional issue raised by Woowon. Woowon’s jurisdictional motion was dismissed by the CMJ, which decision Woowon now appeals.
[22] I note that two months after Brink’s brought this action in Canada, on March 22, 2021, Woowon commenced proceedings against Brink’s in the Seoul Southern District Court in Korea [the Korean Proceedings]. There, Woowon seeks an order it is not liable for the stolen Cargo.
[23] Notably, Binex, Maersk, and CN are not parties in the Korean Proceedings. Damages are not in issue in the Korean Proceedings, only liability.
[24] The Court was advised at the hearing that the Korean Proceedings are currently in abeyance because Woowon has yet to serve necessary parties.
[25] Assuming such service is eventually effected, and no other delays, hearings in the Korean Proceeding are scheduled for January 10 and February 1, 2023, with a decision expected by March 1, 2023.
[26] Investigations are ongoing into those responsible for the fraud and or theft and the whereabouts of the remaining Cargo.
A. The multimodal through bill of lading
[27] The purpose of the BOL is to govern the carriage of the Cargo, responsibility for the Cargo and to provide critical information as to its delivery. Article 2 of the BOL provides:
MULTIMODAL TRANSPORT BILL OF LADING
2 The Carrier, by the issuance of this Multimodal Transport Bill of Lading, undertakes to perform or in its own name to procure the performance of the entire transport from the place at which the goods are taken in charge to the place designated in this Bill of Lading.
Notwithstanding the above, the provisions set out and referred to in this Bill of Lading shall also apply when the transport is performed by one mode of transport.
[28] Article 4 provides:
GOVERNING LAW, JURISDICTION AND LIMITATION STATUTES
The conduct evidenced by or contained in this Bill of Lading shall be governed by the laws, statutes and regulations where this Bill of Lading is issued except as may be otherwise provided for herein, and any action against the Carrier thereunder shall be brought before the court where the Carrier of any statutory protection or exemption or limitation of liability authorized by any applicable laws, statutes and regulations of any country.
[Emphasis added]
[29] Article 7 provides:
RESPONSIBILITY
7 (1) The carrier’s responsibility for loss of or damage to the goods shall commence only when the good are received by any means whatsoever and cease absolutely when the goods are delivered to the Merchant. […]
[Emphasis added]
[30] Article 8 provides:
RECEPTION AND DELIVERY OF GOODS
8 […] If delivery of the goods or any part thereof is not taken by the Merchant at the time and place when and where the Carrier is entitled to call upon the Merchant to take delivery thereof, the Carrier shall be entitled to store the goods or the part thereof, at the sole risk or [sic] the Merchant whereupon the responsibility of the Carrier in respect of the goods or that part thereof stored as aforesaid (as the case may be) shall wholly cease and the cost and expense of such storage shall forthwith upon demand by the Carrier be paid by the Merchant.
III. Decision under review
[31] The CMJ dismissed Woowon’s motion to stay this action. Therefore this action will continue in the Federal Court unless Woowon succeeds in this appeal.
[32] The CMJ awarded costs to Brink’s. The CMJ also awarded costs to Binex although Binex did not request costs against Woowon. Woowon appeals this aspect of the CMJ’s decision but only against Binex.
IV. Issues
[33] These Reasons will discuss:
1) Standard of review;
2) Jurisdiction simpliciter;
3) Application of subsection 46(1) of the Marine Liability Act, SC 2001, c. 6 [“MLA”];
4) Forum non conveniens;
5) The strong cause test; and
6) Costs
V. Relevant law
[34] Section 91(10) of the Constitution Acts, 1867 to 1982 states:
Legislative Authority of Parliament of Canada
Autorité législative du parlement du Canada
91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
91 Il sera loisible à la Reine, de l’avis et du consentement du Sénat et de la Chambre des Communes, de faire des lois pour la paix, l’ordre et le bon gouvernement du Canada, relativement à toutes les matières ne tombant pas dans les catégories de sujets par la présente loi exclusivement assignés aux législatures des provinces; mais, pour plus de garantie, sans toutefois restreindre la généralité des termes ci-haut employés dans le présent article, il est par la présente déclaré que (nonobstant toute disposition contraire énoncée dans la présente loi) l’autorité législative exclusive du parlement du Canada s’étend à toutes les matières tombant dans les catégories de sujets ci-dessous énumérés, savoir:
[…]
[…]
10. Navigation and Shipping.
10. La navigation et les bâtiments ou navires (shipping).
[…]
[…]
[35] Subsection 22(1) of the Federal Courts Act states:
Navigation and shipping
Navigation et marine marchande
22 (1) The Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.
22 (1) La Cour fédérale a compétence concurrente, en première instance, dans les cas — opposant notamment des administrés — où une demande de réparation ou un recours est présenté en vertu du droit maritime canadien ou d’une loi fédérale concernant la navigation ou la marine marchande, sauf attribution expresse contraire de cette compétence.
[Emphasis added]
[Je souligne]
[36] Paragraph 22(2)(f) of the Federal Courts Act provides:
Maritime Jurisdiction
Compétence maritime
(2) Without limiting the generality of subsection (1), for greater certainty, the Federal Court has jurisdiction with respect to all of the following:
(2) Il demeure entendu que, sans préjudice de la portée générale du paragraphe (1), elle a compétence dans les cas suivants :
[…]
[…]
(f) any claim arising out of an agreement relating to the carriage of goods on a ship under a through bill of lading, or in respect of which a through bill of lading is intended to be issued, for loss or damage to goods occurring at any time or place during transit;
f) une demande d’indemnisation, fondée sur une convention relative au transport par navire de marchandises couvertes par un connaissement direct ou devant en faire l’objet, pour la perte ou l’avarie de marchandises en cours de route;
[…]
[…]
[Emphasis added]
[Je souligne]
[37] Paragraph 22(2)(i) of the Federal Courts Act provides:
Navigation and shipping
Navigation et marine marchande
Maritime jurisdiction
Compétence maritime
(2) Without limiting the generality of subsection (1), for greater certainty, the Federal Court has jurisdiction with respect to all of the following:
(2) Il demeure entendu que, sans préjudice de la portée générale du paragraphe (1), elle a compétence dans les cas suivants:
[…]
[…]
(i) any claim arising out of any agreement relating to the carriage of goods in or on a ship or to the use or hire of a ship whether by charter party or otherwise;
i) une demande fondée sur une convention relative au transport de marchandises à bord d’un navire, à l’usage ou au louage d’un navire, notamment par charte-partie;
[…]
[…]
[Emphasis added]
[Je souligne]
[38] Subsection 43(1) of the Marine Liability Act [MLA] states:
Hague-Visby Rules
Règles de La Haye-Visby
Effect
Force de loi
43 (1) The Hague-Visby Rules have the force of law in Canada in respect of contracts for the carriage of goods by water between different states as described in Article X of those Rules.
43 (1) Les règles de La Haye-Visby ont force de loi au Canada à l’égard des contrats de transport de marchandises par eau conclus entre les différents États selon les règles d’application visées à l’article X de ces règles.
[39] Subsection 46(1) of the MLA states:
Claims not subject to Hamburg Rules
Créances non assujetties aux règles de Hambourg
46 (1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where
46 (1) Lorsqu’un contrat de transport de marchandises par eau, non assujetti aux règles de Hambourg, prévoit le renvoi de toute créance découlant du contrat à une cour de justice ou à l’arbitrage en un lieu situé à l’étranger, le réclamant peut, à son choix, intenter une procédure judiciaire ou arbitrale au Canada devant un tribunal qui serait compétent dans le cas où le contrat aurait prévu le renvoi de la créance au Canada, si l’une ou l’autre des conditions suivantes existe:
(a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada;
a) le port de chargement ou de déchargement — prévu au contrat ou effectif — est situé au Canada;
(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or
b) l’autre partie a au Canada sa résidence, un établissement, une succursale ou une agence;
(c) the contract was made in Canada.
c) le contrat a été conclu au Canada.
[Emphasis added]
[Je souligne]
[40] Article 5 of the Hague-Visby Rules provides:
A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and obligations under these Rules, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper. The provisions of these Rules shall not be applicable to charter parties, but if bills of lading are issued in the case of a ship under a charter party they shall comply with the terms of these Rules. Nothing in these Rules shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average.
Un transporteur sera libre d’abandonner tout ou une partie de ses droits et exonérations ou d’augmenter ses responsabilités et obligations tels que les uns et les autres sont prévus par la présente Convention pourvu que cet abandon ou cette augmentation soit inséré dans le connaissement délivré au chargeur. Aucune disposition de la présente Convention ne s’applique aux chartes-parties; mais si des connaissements sont émis dans le cas d’un navire sous l’empire d’une charte-partie, ils sont soumis aux termes de la présente Convention. Aucune disposition dans ces règles ne sera considérée comme empêchant l’insertion dans un connaissement d’une disposition licite quelconque au sujet d’avaries communes.
[41] Article 10 of the Hague-Visby Rules provides:
The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if
Les dispositions de la présente
Convention s’appliqueront à tout connaissement relatif à un transport de marchandises entre ports relevant de deux États différents quand:
(a) the bill of lading is issued in a contracting State, or
a) le connaissement est émis dans un État Contractant ou
(b) the carriage is from a port in a contracting State, or
b) le transport a lieu au départ d’un port d’un État Contractant ou
(c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract; whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person.
c) le connaissement prévoit que les dispositions de la présente Convention ou de toute autre législation les appliquant ou leur donnant effet régiront le contrat, quelle que soit la nationalité du navire, du transporteur, du chargeur, du destinataire ou de toute autre personne intéressée.
[Emphasis added]
[Je souligne]
[42] Section 51 of the Federal Courts Rules states:
Appeals of Prothonotaries’ Orders
Appel des ordonnances du protonotaire
Appeal
Appel
51(1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.
51(1) L’ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Cour fédérale.
VI. Analysis
A. Standard of review
[43] Both the Plaintiffs and Defendants submit, and I agree, that the standards of review on this appeal are “palpable and overriding error” on questions of fact or mixed questions of law and fact, and correctness on questions of law, and mixed questions of law and fact where there is an extricable principle of law: Housen v Nikolaisen, 2002 SCC 33 at para 36; Apotex Inc v Bayer Inc, 2020 FCA 86 [Bayer] at paras 30-31 The Federal Court of Appeal put it this way in Bayer: “[31] Consequently, questions of fact and mixed questions of law and fact are subject to the palpable and overriding error standard while questions of law and mixed questions, where there is an extricable principle of law, are subject to the correctness standard.”
[44] Stratas JA for the Federal Court of Appeal in Canada v South Yukon Forest Corporation, 2012 FCA 165 held that the palpable and overriding error standard is a highly deferential standard involving obvious errors:
[46] Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Peart v. Peel Regional Police Services (2006) 2006 CanLII 37566 (ON CA), 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, supra. “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
[Emphasis added]
[45] The Federal Court of Appeal, again per Stratas JA, repeats and sets out additional guidance on palpable and overriding error in Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157:
[61] Palpable and overriding error is a highly deferential standard of review: Benhaim v. St. Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 at para. 38; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. See Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286 at para. 46, cited with approval by the Supreme Court in St. Germain, above.
[62] “Palpable” means an error that is obvious. Many things can qualify as “palpable.” Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence.
[63] But even if an error is palpable, the judgment below does not necessarily fall. The error must also be overriding.
[64] “Overriding” means an error that affects the outcome of the case. It may be that a particular fact should not have been found because there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it, the error is not “overriding.” The judgment of the first-instance court remains in place.
[65] There may also be situations where a palpable error by itself is not overriding but when seen together with other palpable errors, the outcome of the case can no longer be left to stand. So to speak, the tree is felled not by one decisive chop but by several telling ones.
[Emphasis added]
[46] In addition, on appeals under Rule 51 of the Federal Courts Rules, SOR/98-106, the Case Management Judge is assumed to be very familiar with the particular circumstances and issues in a proceeding and therefore, a case management judge’s decision must be afforded deference, especially on factually suffused questions: see Sawridge Band v R, 2001 FCA 338, at para 11; and Merck & Co v Apotex Inc., 2003 FCA 438, at para 12.
[47] In addition, the Federal Court of Appeal has held that “detailed reasons are not required in a prothonotary’s order” (Maximova v Canada (Attorney General), 2017 FCA 230 at para 11). This is because among other things, “Prothonotaries deal with an extraordinary volume of procedural issues” (Novopharm Ltd v Nycomed Canada Inc, 2011 FC 109 [per Mandamin J] at para 22 [Novopharm]). This Court has also determined “[i]t would be intolerable, and the wheels of justice would grind most slowly indeed, if each discretionary order had to be accompanied by a full set of motivated reasons in order to discourage the unsuccessful party from appealing and inviting the Court to exercise its discretion anew,” (Novopharm, supra).In elaborating these standards, it is important to first note that a non-mention of reasons by a decision maker does not mean the issue was ignored. Rather, the first instance decision maker is presumed to have considered everything: Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157.
B. Framework and jurisdiction simpliciter
[48] The CMJ held jurisdiction simpliciter of the Federal Court was established. The leading authority in determining the jurisdiction of the Federal Court is the Supreme Court of Canada’s judgment in ITO-Int’l Terminal Operators v Milda Electronics, [1986] 1 SCR 752 [ITO]. In ITO the Supreme Court of Canada determined the following criteria must be met for this Court to have jurisdiction:
a) There must be a statutory grant of jurisdiction by Federal parliament;
b) There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and
c) The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act, 1867.
[49] In this connection, the CMJ correctly held the Court must determine the essential nature of character of the claim on “a realistic appreciation of the practical result sought by the claimant”. In undertaking this analysis, the CMJ followed jurisprudence of the Supreme Court in Windsor (City) v Canadian Transit Co, 2016 SCC 54 at paras 25-26, and of the Federal Court of Appeal in Domtar Inc. v Canada (Attorney General), 2009 FCA 218, at para 28.
[50] In particular, I find neither error nor palpable and overriding error in the following outline of the law by the CMJ:
54] To determine this Court’s jurisdiction, the first step is to ascertain the essential nature or character of the claim (Windsor (City) v Canadian Transit Co., 2016 SCC 54 (Windsor) at para 25; Apotex Inc. v Ambrose, 2017 FC 487 at para 47). As stated by the Supreme Court in Windsor:
[26] The essential nature of the claim must be determined on “a realistic appreciation of the practical result sought by the claimant” (Domtar Inc. v. Canada (Attorney General), 2009 FCA 218, 392 N.R. 200, at para. 28, per Sharlow J.A.). The “statement of claim is not to be blindly read at its face meaning” (Roitman v. Canada, 2006 FCA 266, 353 N.R. 75, at para. 16, per Décary J.A.). Rather, the court must “look beyond the words used, the facts alleged and the remedy sought and ensure . . . that the statement of claim is not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court” (ibid.; see also Canadian Pacific Railway v. R., 2013 FC 161, [2014] 1 C.T.C. 223, at para. 36; Verdicchio v. R., 2010 FC 117, [2010] 3 C.T.C. 80, at para. 24).
[27] On the other hand, genuine strategic choices should not be maligned as artful pleading. The question is whether the court has jurisdiction over the particular claim the claimant has chosen to bring, not a similar claim the respondent says the claimant really ought, for one reason or another, to have brought.
[51] The CMJ, following the teachings of the Supreme Court, determined the “essence of the claim is for loss incurred as a result of the carriage of goods pursuant to a multimodal through bill of lading”:
[55] In this case, the essence of the claim is for loss incurred as a result of the carriage of goods pursuant to a multimodal through bill of lading. This brings the claim within paragraph 22(1) of the Federal Courts Act. This section grants jurisdiction to the Federal Court “with respect to any claim arising out of an agreement for the carriage of goods on a ship under a through bill of lading . . . for loss or damage to goods at any time or place during transit.” Prima facie, this claim falls within that section (see, Elroumi at para 11). The first part of the ITO test is therefore met.
[Emphasis added]
[52] I see no error nor palpable and overriding error in determining the essence of the claim in this case is for loss incurred as a result of the carriage of goods pursuant to a through bill of lading. The CMJ followed the correct framework. And, with respect, the CMJ did not err in identifying section 22 of the Federal Courts Act which includes paragraph 22(2)(f):
Maritime Jurisdiction
Compétence maritime
(2) Without limiting the generality of subsection (1), for greater certainty, the Federal Court has jurisdiction with respect to all of the following:
(2) Il demeure entendu que, sans préjudice de la portée générale du paragraphe (1), elle a compétence dans les cas suivants:
[...]
[…]
(f) any claim arising out of an agreement relating to the carriage of goods on a ship under a through bill of lading, or in respect of which a through bill of lading is intended to be issued, for loss or damage to goods occurring at any time or place during transit;
f) une demande d’indemnisation, fondée sur une convention relative au transport par navire de marchandises couvertes par un connaissement direct ou devant en faire l’objet, pour la perte ou l’avarie de marchandises en cours de route;
[…]
[…]
[Emphasis added]
[Je souligne]
[53] Paragraph 22(2)(i) of the Federal Courts Act provides:
Navigation and shipping
Navigation et marine marchande
Maritime jurisdiction
Compétence maritime
(2) Without limiting the generality of subsection (1), for greater certainty, the Federal Court has jurisdiction with respect to all of the following:
(2) Il demeure entendu que, sans préjudice de la portée générale du paragraphe (1), elle a compétence dans les cas suivants:
[…]
[…]
(i) any claim arising out of any agreement relating to the carriage of goods in or on a ship or to the use or hire of a ship whether by charter party or otherwise;
i) une demande fondée sur une convention relative au transport de marchandises à bord d’un navire, à l’usage ou au louage d’un navire, notamment par charte-partie;
[…]
[…]
[54] It was open for the CMJ to find as he did. This is established by looking at paragraph 22(2)(f) of the Federal Courts Act in the context of the record in this case. First, the words “any claim arising out of an agreement” are met here: the claim arises out of an agreement. Next follow are the words “relating to the carriage of goods on a ship under a through bill of lading”. Here there is a through bill of lading. While the BOL is a multimodal bill of lading, I am not persuaded the CMJ erred in finding a multimodal through bill of lading is nonetheless a through bill of lading for the purposes of paragraph 22(2)(f) of the Federal Courts Act. This is especially so given the CMJ’s determination that the essence of the claim is for loss incurred as a result of the carriage of goods pursuant to a multimodal through bill of lading.
[55] In this connection, I also note the Supreme Court of Canada ruled the expression “relating to” is “probably the widest of any expression intended to convey some connection between two related subject matters,” and did so in Slattery (Trustee of) v Slattery, [1993] SCR 430, 106 DLR (4th) 212 at 445 [Slattery]. This confirms the CMJ made no error in finding the presence of carriage by ships and rail satisfies the requirement that there be an agreement “relating to the carriage of goods on a ship under a through bill of lading”. The agreement, in the “widest of any expression” sense, is one relating to carriage of goods on a ship. This among things flows from my earlier conclusion that a multimodal through bill of lading is a through bill of lading in this context.
[56] Notably also, in making this finding the CMJ focussed on the continuing liability of the multimodal through bill of lading.
[57] As it did before the CMJ, Woowon continues to submit this Court lacks jurisdiction based on the Federal Court’s decision in Black & White Merchandising Co. Ltd. v Deltrans International Shipping Corporation, 2019 FC 379 [Deltrans]. Woowon argues the Plaintiffs’ loss occurred during inland warehousing after the Cargo was delivered (rather than during transit), such that the essence of the claim on the facts of this case is theft after the conclusion or fulfilment of the contract of carriage and during warehousing, thus falling outside the scope of paragraph 22(2)(f) of the Federal Courts Act.
[58] With respect, there is no merit in this argument. In my view the CMJ made neither error nor palpable and overriding error in this respect. Deltrans is clearly distinguishable on its facts and I can do no better than repeat the reasons of the CMJ:
[56] As each of the parties rely upon the Deltrans case, it is necessary to consider carefully what the case decides. It is a factually driven decision and has some similar facts to this case. Deltrans concerned the theft of a cargo that was shipped from China to Montreal pursuant to a bill of lading for combined transport shipment. The bill of lading described the type of move as CY/CY, as is the case here.
[57] The party responsible for arranging the logistics for the transportation of the cargo retained Canchi Bon Trading Company Inc. (Canchi) to warehouse the cargo. The cargo was delivered to the container yard as required and then warehoused elsewhere by Canchi. The cargo was stolen from the warehouse where it was being stored.
[58] The Court in Deltrans determined that the bill of lading had expired because the cargo was delivered to the place of delivery. Accordingly, any liability under the bill of lading was exhausted. As a result, the Federal Court was without jurisdiction and the action dismissed.
[59] As outlined above, the parties in this case disagree whether delivery was carried out. If delivery was carried out by the delivery of the Cargo to the CN Railyard, as Woowon submits, then the Bill of Lading would have expired. If, on the other hand, delivery was not carried out because the cargo was never delivered into the hands of the consignee, then liability under the Bill of Lading would remain.
[60] In my view, the face of the Bill of Lading stipulates that the Cargo had to be delivered to the consignee at the container yard. It remains an open question whether Woowon’s responsibilities under the Bill of Lading were exhausted. It is necessary to determine whether the tendering of the correct code amounted to delivery or whether additional steps were necessary. In my view, this further differentiates the case from Deltrans. A full evidentiary record is necessary to establish with finality the question of “delivery” to the consignee.
[59] In this connection the BOL refers to “Place of delivery” as Montreal. As with the CMJ, I am not persuaded the issue of delivery in the factual circumstances of this case may be finally determined at this time. Nor, with respect, is such final determination always required. While there are obvious clear advantages to early determinations, the Federal Court of Appeal states that early resolution is “generally” required: Great White Fleet v Arc-En-Ciel Produce Inc., 2021 FCA 70 at para 12 per Rennie JA: “For these reasons, questions as to the application of section 46 of the MLA should generally be settled prior to trial.”[Emphasis added] In my view there is neither error, nor palpable and overriding error, in the CMJ’s determinations including the finding a full evidentiary record is necessary to establish with finality the question of “delivery” to the consignee.
[60] The CMJ also found the BOL positively “stipulates that the Cargo had to be delivered to the Consignee at the container yard.” I see neither error nor palpable and overriding error in the CMJ’s conclusions in this respect. This is what the BOL itself provides. It identifies a Consignee (Brink’s Canada), it states CY/CY, and states Montreal as “Place of delivery”. It seems to me on this record that while the Cargo (or at least the container) may have arrived at CN’s container yard in Montreal, delivery was not carried out because the Cargo did not come into the possession of the Consignee. I am not satisfied “delivery” in this case was simply the arrival of the container, with or without the Cargo, at Montreal.
[61] The conclusion the Federal Court has jurisdiction simpliciter is also supported by the decision of our highest Court in Z.I. Pompey Industrie v ECU-Line N.V., 2003 SCC 27; [2003] 1 S.C.R. 450 [Pompey]. In my view Pompey confirms the Federal Court’s jurisdiction. In Pompey, cargo was shipped under a multimodal bill of lading from Antwerp via Montreal to Seattle, Washington, USA. As with the case at bar, the cargo was carried by ship in the first stage, from Antwerp to Canada (Montreal) where it was unloaded. This is analogous to the Cargo in the case at bar being carried by ship from Korea and unloaded in Canada (Vancouver). From Montreal, the cargo was shipped by railcar to Seattle where it was discharged. The bill of lading provided Antwerp as the “port of loading”, and Seattle the “port of discharge”. Notably, in Pompey the cargo was actually discharged in Montreal and loaded onto railcars in Montreal for onward transportation to Seattle. This is the same situation as in the case at bar; the second phase of the carriage was by rail.
[62] In Pompey at paragraph 37, the Supreme Court held (in a unanimous judgment) per Justice Bastarache, that where the actual port of loading or discharge is in Canada, “there would be no question that the Federal Court is an appropriate forum to hear the respondents’ claim”. After coming to this conclusion, the Supreme Court held the Federal Court did not have jurisdiction because of (“but for”) certain transition provisions in the MLA to the effect section 46 did not apply to proceedings commenced before the MLA came into force. The Supreme Court held:
D. Section 46 of the Marine Liability Act
37. Section 46(1) of the Marine Liability Act, which entered into force on August 8, 2001, has the effect of removing from the Federal Court its discretion under s. 50 of the Federal Court Act to stay proceedings because of a forum selection clause where the requirements of s. 46(1)(a), (b), or (c) are