J.D. Irving, Limited v. Siemens Canada Limited

J.D. Irving, Limited v. Siemens Canada Limited
Court (s) Database
Federal Court Decisions
Date
2011-06-29
Neutral citation
2011 FC 791
File numbers
T-520-10, T-666-10
Decision Content
Federal Court
Cour fédérale
Date: 20110629
Dockets: T-520-10
T-666-10
Citation: 2011 FC 791
Ottawa, Ontario, June 29, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
Docket: T-520-10
J.D. IRVING, LIMITED
Plaintiff
and
SIEMENS CANADA LIMITED, MARITIME MARINE CONSULTANTS (2003) INC., SUPERPORT MARINE SERVICES LTD. AND NEW BRUNSWICK POWER NUCLEAR CORPORATION
Defendants
Docket: T-666-10
MARITIME MARINE CONSULTANTS (2003) INC.
Plaintiff
and
SIEMENS CANADA LIMITED, J.D. IRVING, LIMITED, SUPERPORT MARINE SERVICES LTD., NEW BRUNSWICK POWER NUCLEAR CORPORATION AND BMT MARINE AND OFFSHORE SURVEYS LTD.
Defendants
and
AXA CORPORATE SOLUTIONS
Third Party
REASONS FOR ORDER AND ORDER
Overview
[1] Within 10 seconds in the forenoon of October 15, 2008, two steam turbine rotors that were destined to the Point Lepreau Nuclear Generating Station in Point Lepreau, New Brunswick, parted from the deck of cargo barge SPM 125 at Pier 3 of the harbour in Saint John, New Brunswick, and came to rest in waters of the harbour (the “Incident”).
[2] On or about April 8, 2010, Siemens Canada Limited (“Siemens”), the suppliers of the rotors, commenced an action in the Ontario Superior Court of Justice in cause number CV-10-400645, against J.D. Irving Ltd. (“Irving”), BMT Marine and Offshore Surveys Limited (“BMT”), Maritime Marine Consultants (2003) Inc. (“MMC”) and Superport Marine Services Ltd. (“Superport”). In the Ontario action, Siemens advanced claims for breach of contract, negligent misrepresentation, negligence and/or gross negligence and failure to warn, and claimed damages of $40,000,000 together with pre-judgment and post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. 43, together with costs on a substantial indemnity basis. The initial claim of $40,000,000 was later increased to $45,000,000.
[3] Furthermore, Siemens claimed joint and several indemnification from Irving, MMC, BMT, and Superport (“the defending parties”) in respect of “all claims, liabilities, charges, or demands made against it by New Brunswick Power Nuclear Corporation (“NBPNC”) including all claims made by NBPNC for liquidated damages under the Agreement” between it and NBPNC. Siemens contracted to provide the rotors to NBPNC.
[4] By Statement of Claim filed on April 7, 2010, Irving commenced an action in this Court pursuant to the Marine Liability Act, S.C. 2001, c. 6 (the “MLA” or the “Act”) seeking, among other things, a declaration that it is entitled to limit its liability in relation to the Incident to $500,000 plus interest to the date of the constitution of the limitation fund pursuant to subsections 29(6), 29.1 and 32(5) of the MLA. This action is cause number T-520-10.
[5] Irving named Siemens, MMC, Superport and NBPNC as Defendants (the “Defendants”).
[6] By a Statement of Claim filed on April 30, 2010, MMC commenced an action in this Court seeking to limit its liability, pursuant to the MLA, in relation to the Incident. MMC named Siemens, Irving, Superport, NBPNC and BMT as Defendants in its action. This action is cause number T-666-10.
[7] By Third Party Notice filed on July 28, 2010, BMT claimed contribution and indemnity and other relief, in relation to the Incident, against AXA Corporate Solutions (“AXA”), a cargo insurer.
[8] By letter dated November 22, 2010, Counsel for Irving advised that Siemens had commenced a second action in the Ontario Superior Court of Justice relative to the Incident. In this action, being cause number CV-10-412-348, Siemens claimed $45,000,000 in damages against twelve individuals, including Mr. Don Bremner, a principal of MMC, and Atlantic Towing Limited, a subsidiary of Irving.
[9] This action was begun on October 14, 2010 and Irving objected that Siemens had failed to advise this Court about this second action when the several motions were argued on October 19, 2010. Irving advised the relief sought in its motion should apply to the second action. The parties were given the opportunity to make further submissions in this regard and did so by filing written arguments in January and February 2011.
Background
[10] The following facts are taken from the materials filed in the parties’ Motion Records, including the pleadings that have been filed in both the Ontario Superior Court of Justice and Federal Court actions.
[11] Siemens entered into a contract with Atomic Energy of Canada Limited, on or about September 1, 2006, for certain work in refurbishing and upgrading the Point Lepreau Nuclear Generating Station located at Point Lepreau, New Brunswick. The contract, subsequently assigned to NBPNC, required the provision of three modules for incorporation into Point Lepreau. The modules included turbine rotors. The modules were manufactured in Germany and transported to Saint John, New Brunswick, for further transport to Port Lepreau.
[12] Siemens entered into a contract with Irving by means of a purchase order issued on or about January 11, 2007 for the carriage of the modules. The rotors were to be moved from Saint John harbour to Point Lepreau Nuclear Generating Station by water.
[13] Irving engaged MMC, as marine architects, relative to the water carriage of the rotors from Saint John to Point Lepreau. Irving retained MMC to approve the stability of the SMP 125, determine the appropriate lashing and securing arrangements and to calculate a ballasting plan for loading the rotors onto the SMP 125. MMC prepared a plan entitled “Barge ‘SPM 125’ Stability Conditions for Lepreau Rotor Move First Load”, dated October 8, 2010 and revised October 10, 2010.
[14] By bareboat charter-party dated October 9, 2008, Irving chartered from Superport the SPM 125, a barge with a reported gross tonnage of 256.00 tonnes. The charter-party agreement also gave Irving the use of the tug “Mary Steele”.
[15] Siemens engaged BMT, on or about October 2, 2008, to provide marine surveying services relating to the handling and transportation plan for the movement of the rotors by the barge SPM 125.
[16] As noted above, in the course of the boarding of two rotors on to the barge SPM 125 on the morning of October 15, 2008, the two rotors left the barge and went into the waters of Saint John harbour.
[17] The rotors were damaged as a result of their submersion. Siemens alleges that it is responsible for the delivery, at its expense, of new modules to the Point Lepreau station. The cost of manufacturing and delivering two new rotors is estimated to cost approximately $20,000,000 and will require four years to complete. In an effort to mitigate its losses, Siemens arranged for repair of the damaged rotors. The costs of such repairs are estimated to be $10,000,000 plus additional transportation costs.
Procedural Steps
[18] Siemens, Irving, BMT, Superport, and NBPNC signed a tolling agreement on October 13, 2009 in which they agreed not to commence litigation before April 13, 2010 without first giving two weeks’ notice of their intention to do so. Article 1 of the tolling agreement suspended all applicable time periods for the duration of that agreement. Siemens and Irving both provided two weeks notice to all the other parties to the tolling agreement on March 24, 2010.
[19] As noted above, Siemens commenced litigation in the Ontario Superior Court of Justice in April 2010 and the within actions were commenced at the same time. Siemens initiated its second action in the Ontario Superior Court in October 2010.
[20] The present actions in the Federal Court address issues relative to limitation of liability, including the establishment of a limitation fund. The Statements of Claim issued in causes number T-520-10 and T-666-10 are substantially the same, involving the same set of facts, the same key parties and the same legal issues. Although there are slight differences in the language of the two Statements of Claim, essentially the same relief is sought, that is a declaration that the liability of Irving and MMC is limited to $500,000 pursuant to the MLA and an order enjoining any proceedings beyond this Court, that is the Federal Court.
Present Motions
i) T-520-10
[21] On April 28, 2010, Siemens filed a Notice of Motion seeking a stay of this action insofar as it relates to the constitution and distribution of a limitation fund pursuant to section 33 of the MLA, as well as a permanent stay of the action relative to Irving’s entitlement to limit its liability pursuant to section 28 and 29 of the Act.
[22] By Notice of Motion dated April 30, 2010, Irving sought the following relief:
a) giving advice and directions as to the manner in which the Plaintiff’s action for a declaration that its liability in respect of the incident of October 15, 2008, as described in the Statement of Claim in this action, (the “Incident”) is limited pursuant to the provisions of the Marine Liability Act, S.C. 2001 c. 6 (the “MLA”) to $500,000 plus interest from October 15, 2008 to the date on which the statutory limitation fund is constituted, and for the constitution of a limitation fund (the “Limitation Fund”), may be heard and determined;
b) for service of notice of this action on potential claimants by advertising in two weekend editions of the New Brunswick Telegraph Journal or by such other forms of advertising as this Court deems just and appropriate;
c) authorizing the Plaintiff, J.D. Irving, Limited (“JDI”), to file a guarantee bond (the “Guarantee Bond”) in an amount to be fixed by the Court, being $500,000 plus interest from October 15, 2008 to the date of the institution of the Limitation Fund, and that the filing of the Guarantee Bond shall constitute the Limitation Fund in respect of the Incident;
d) setting the time limit within which the Defendants and other potential claimants must file their defences or claims against the Limitation Fund;
e) directing that any claim against the Limitation Fund not filed within the time specified by the Court shall be barred from participation in the distribution of the Limitation Fund;
f) enjoining the Defendants, and any other person, from commencing or continuing proceedings before any court other than this Court against the Plaintiff in respect of the Incident;
g) declaring that the Limitation Fund be rateably distributed amongst the persons whom the Court decides are entitled to claim against the Limitation Fund; and,
h) such further and other relief as counsel advise and this Court deems just and appropriate.
ii) T-666-10
[23] By Notice of Motion dated June 4, 2010, Siemens sought the following relief:
1.An order staying this action (the “Action”) as it relates to the constitution and distribution of a fund pursuant to section 33 of the Marine Liability Act;
2. An order permanently staying the Action as it relates to the entitlement of Maritime Marine Consultants (2003) Inc. (“MMC”) to limit is [sic] liability pursuant to sections 28 and 29 of the Marine Liability Act;
3. Such further and other relief as counsel may advise and this Honourable Court deem just.
[24] By Notice of Motion dated July 23, 2010, MMC sought the following relief:
1. An order giving the parties advice and direction as to the manner in which the Plaintiff’s action for a declaration that its liability in respect of an incident which occurred on October 15, 2008, and as further described in the Statement of Claim (“the incident”) is limited pursuant to the provisions of the Marine Liability Act, S.C. 2001, c. 6;
2. An order for service of the notice of this action on potential claimants by advertising in two weekend editions of the New Brunswick Telegraph Journal or by such other forms of advertising as this Court deems just and appropriate, which advertising shall take place jointly with the advertising in connection with an action brought by J.D. Irving Limited bearing Court File No. T-520-10 (“the Irving action”);
3. An order setting the time limit within which the Defendants and other potential claimants must file their defences or claims in connection with this action;
4. An order directing that any claim not filed within the time specified by the Court shall be barred from participation in the distribution of any limitation fund which may be established in connection with this action or the Irving action;
5. An order enjoining the Defendants, and any other person, from commencing or continuing proceedings before any other Court, other than the Federal Court of Canada, against the Plaintiff in respect of the incident;
6. Such further and other relief as counsel may advise and this Honourable Court deems just and proper.
[25] Finally, by Notice of Motion dated August 4, 2010, BMT sought the following relief:
1. directing the Defendants herein, including Siemens Canada Limited and any other person or party having knowledge of the said Order, from commencing or continuing proceedings in any Court, tribunal or authority other than the Federal Court of Canada, being the Admiralty Court as defined by the Marine Liability Act, S.C. 2001, c. 6, as amended, with respect to any claim of any nature whatsoever arising from or relating to the capsizing of the barge “SPM 125” at Saint John, New Brunswick on or about 15 October 2008;
2. directing that those claims filed by way of legal proceedings in the Ontario Superior Court of Justice in Toronto (docket number CV-10-400645), including any and all related counter and/or cross-claims, be asserted by way of counter-claims or cross-claims herein and directing further that the plaintiffs therein refrain from continuing the said proceedings;
3. such other and further relief as counsel advise and this Honourable Court deems just and appropriate;
4. The whole with costs.
The Evidence
[26] Affidavit and documentary evidence in these matters was filed both by Irving and Siemens. In support of its motion in T-520-10, Irving filed the affidavit of Mr. Wayne Power, a Vice-President with Irving.
[27] In his affidavit, Mr. Power provided background information concerning the relationship between Irving and Siemens, arrangements for the transportation of the rotors from Saint John to Point Lepreau, the engagement of MMC to advise Irving in that regard, references to the accident of October 15, 2008 and a subsequent investigation by Transport Canada in that regard. He also referred to the commencement of the execution of a tolling agreement among the parties to this litigation and the commencement of litigation by Siemens in the Ontario Superior Court.
[28] Various documents are attached as exhibits to Mr. Power’s affidavit, including Irving’s quote dated April 28, 2006 for the movement of the rotors, a copy of the purchase order dated January 11, 2007 that was issued by Siemens, a copy of the charter-party between Irving and Superport, a copy of certain stability calculations that were prepared by MMC relative to the transportation of the rotors on the SPM 125 and a copy of the investigation report prepared by Transport Canada Marine Safety Division.
[29] Irving also filed three affidavits of Ms. Jean Campbell, a litigation law clerk employed by the solicitors for Irving in this matter. In her first affidavit, sworn to on April 30, 2010, Ms. Campbell attached, as exhibits, copies of certain documents prepared by Canada Revenue Agency relating to interest payable on overpayments of income tax for the financial quarter during which the Incident took place, and the two following financial quarters. Ms. Campbell also attached, as an exhibit, a table showing the interest, compounded daily, that had accrued from the date of the Incident as of June 15, 2010. The amount of interest was calculated as $29,217.96.
[30] In her second affidavit, sworn to on September 27, 2010, Ms. Campbell attached, as exhibits, copies of certain correspondence between Counsel for Irving and Counsel for Superport; copies of certain emails exchanged between Counsel for Irving and Counsel for Siemens; and a copy of a letter from Counsel for Irving providing replies to undertakings and questions taken under advisement on the cross-examination of Mr. Power, which cross-examination was conducted on June 21, 2010.
[31] The third affidavit from Ms. Campbell is dated October 13, 2010. Attached as an exhibit to that affidavit was a copy of a Notice of Arbitration between Superport and Irving, dated October 13, 2010, sent by email from Counsel for Superport to Counsel for Irving. The Notice of Arbitration was given pursuant to the charter-party between Irving and Superport and gave notice that Superport intended to seek a determination by arbitration as to “whether and to what extent” Irving is liable to Superport for loss and damage as a result of the occurrence of October 15, 2008.
[32] Siemens filed four affidavits sworn to by Ms. Jennifer Robinson, a law clerk with Counsel for Siemens. In her first affidavit, sworn on April 14, 2010, Ms. Robinson referred to the event giving rise to this litigation, and related litigation, and attached various documents as exhibits, including a copy of the tolling agreement and a copy of the Statement of Claim relating to the action commenced by Siemens in the Ontario Superior Court.
[33] In her second affidavit, sworn to on June 4, 2010, Ms. Robinson referred to the commencement of the limitation proceedings by MMC in the Federal Court and attached, as exhibits, copies of the Statement of Claim in that regard, as well as a copy of the Defence filed by MMC to the limitation proceedings commenced by Irving in the Federal Court.
[34] In the third affidavit, sworn to on June 18, 2010, Ms. Robinson attached copies of certain correspondence sent by Counsel for Siemens to three of the defending parties in the Ontario proceedings, wherein Counsel for Siemens requested defences on behalf of MMC, BMT and Superport in respect of the Ontario proceedings. This affidavit also included, as an exhibit, a copy of an expert report prepared on behalf of Siemens by Design Research Engineering. This report is dated June 10, 2010. Finally, this affidavit included a copy of a jury notice that has been filed by Siemens in relation to the Ontario proceedings.
[35] In her fourth affidavit, sworn to on September 1, 2010, Ms. Robinson attached copies of various documents relating to the Ontario proceedings and the action commenced by MMC in the Federal Court, cause number T-666-10. She also attached a copy of a supplementary expert report, dated August 2, 2010, prepared by Design Research Engineering. Siemens had commissioned this report to be used in connection with the Ontario proceedings. Finally, she attached a copy of a letter dated September 1, 2010 from Counsel for Siemens to Counsel for Irving, advising that Siemens did not require the creation of a limitation fund and advising, as well, that NBPNC waiving the creation of a limitation fund.
[36] In addition to these affidavits of Ms. Robinson, together with the attached exhibits, Siemens filed a compendium of documents consisting primarily of copies of the pleadings to date in the Ontario and Federal Court actions. Siemens also filed an Exhibit Book consisting of documents concerning efforts made by Irving to obtain a barge for the carriage of the rotors, documents relating to communications between Irving and MMC as to the suitability of the barge and stability calculations, communications concerning the timing of the transportation, and related emails. The Exhibit Book also contains copies of a series of photographs and an extract from a web page for Irving Equipment.
[37] No affidavit evidence in respect of these motions was filed by MMC, BMT or AXA.
Discussion
(i) Jurisdiction
[38] As noted at the beginning of these Reasons, there are five motions before the Court in these two proceedings. Siemens has filed a motion in both cause number T-520-10 and cause number T-666-10 seeking a stay of the two respective actions insofar as the relief sought by Irving and MMC, respectively, is principally the constitution and distribution of a limitation fund pursuant to the MLA. As well, in both actions, Siemens seeks a permanent stay of the actions on the basis that neither Irving nor MMC is entitled to limit liability pursuant to the MLA.
[39] Insofar as it seeks to stay the two limitation proceedings in the Federal Court, Siemens challenges the jurisdiction of this Court over the subject matter of its claim, that is the claim for damages in the actions that it commenced in the Ontario Superior Court of Justice. Siemens argues that its claim does not fall within the jurisdiction of this Court because it is not a matter of maritime law, and in any event, if there is doubt on that issue, this Court should decline to exercise its jurisdiction pursuant to section 33 of the MLA.
[40] It submits that its claim for damages does not arise in connection with the operation of a ship, that the damage did not occur on board the ship, and that its claim for damages does not arise from the delay in the carriage of the goods. Rather, its claim for damages relates to repair and replacement costs. It further submits that the scope of the proceedings before the Ontario Superior Court is broader and without doubt as to the jurisdiction of that Court over all the defending parties. It argues that the purpose of the Ontario proceedings is much different from the purposes of the limitation proceedings commenced in the Federal Court.
[41] It argues that the heart of its claim is a contract with Irving, pursuant to a purchase order that was issued on January 11, 2007 for the transportation of the rotors from Saint John to Port Lepreau. It submits that this purchase order is a standard contract for transportation of goods and not a contract for the carriage of goods by sea. It argues that the essential character of its claim is unrelated to navigation, seamanship or shipping and that these elements are irrelevant to its loss.
[42] Siemens relies on the decision in Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206, to argue that a claim can have a “local or private” aspect, as well as maritime aspects, and accordingly, can be adjudicated by a provincial court.
[43] Irving, MMC and BMT resist and repudiate Siemens’ characterization of the claim and submit that the claim is clearly a matter of maritime law falling within the jurisdiction of this Court.
[44] The first question, then is whether this Court has jurisdiction over Siemens’ claim for the recovery of damages.
[45] Siemens characterizes its claim for the recovery of damages as a matter of contract and common law negligence. In the further submissions, Siemens and AXA refer to and rely upon the recent decisions of the Supreme Court of Canada in Canada (Attorney General) v. TeleZone Inc., [2010] 3 S.C.R. 585, arguing that this Court should consider the cause of action as it was characterized in the Ontario Superior Court of Justice, in deciding whether this Court has jurisdiction. It submits that the matter at issue does not fall within the jurisdiction of the Federal Court because its claim is not, essentially, one of maritime law.
[46] In this regard, it relies upon the decisions in Dreifelds v. Burton (1998), 38 O.R. (3d) 393 (O.N.C.A.), and Isen v. Simms, [2006] 2 S.C.R. 349, among others, to argue that the mere presence of water and a ship is insufficient to establish a claim within the jurisdiction of this Court.
[47] Irving and BMT submit that TeleZone has no application to the present case because that decision involves the availability of certain remedies, that is an application for judicial review as opposed to an action against the federal Crown.
[48] I agree with the general argument made by Siemens that the mere proximity of water, together with a water borne craft, is insufficient, per se, to grant jurisdiction in this Court. The test for finding jurisdiction in matters of navigation and shipping was set out by the Supreme Court of Canada in its decision in ITO-Int'l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752 at 766, as follows:
The question of the Federal Court's jurisdiction arises in this case in the context of Miida's claim against ITO, a claim involving the negligence of a stevedore-terminal operator in the post-discharge storage of the consignee's goods. The general extent of the jurisdiction of the Federal Court has been the subject of much judicial consideration in recent years. In Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential requirements to support a finding of jurisdiction in the Federal Court were established. They are:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. 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.
3. 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] Section 22 of the Federal Courts Act, R.S.C. 1985, c. F-7 fulfills the first step of the ITO test by describing the admiralty jurisdiction of this Court. Subsection 22(1) is a statement of general jurisdiction and provides as follows:
Navigation and shipping
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.
Navigation et marine marchande
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.
[50] Subsection 22(2) identifies a number of specific instances where this Court possesses maritime jurisdiction. Paragraphs 22(2) (e), (h) and (i) are relevant and provide as follows:
Maritime jurisdiction
(2) Without limiting the generality of subsection (1), for greater certainty, the Federal Court has jurisdiction with respect to all of the following:
…
(e) any claim for damage sustained by, or for loss of, a ship including, without restricting the generality of the foregoing, damage to or loss of the cargo or equipment of, or any property in or on or being loaded on or off, a ship;
…
(h) any claim for loss of or damage to goods carried in or on a ship including, without restricting the generality of the foregoing, loss of or damage to passengers’ baggage or personal effects;
(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;
…
Compétence maritime
(2) Il demeure entendu que, sans préjudice de la portée générale du paragraphe (1), elle a compétence dans les cas suivants :
…
e) une demande d’indemnisation pour l’avarie ou la perte d’un navire, notamment de sa cargaison ou de son équipement ou de tout bien à son bord ou en cours de transbordement;
…
h) une demande d’indemnisation pour la perte ou l’avarie de marchandises transportées à bord d’un navire, notamment dans le cas des bagages ou effets personnels des passagers;
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;
…
[51] This statutory grant of jurisdiction over Canadian maritime law is nourished by a number of statutes applicable to this case, including the MLA, which incorporates the Convention on Limitation of Liability for Maritime Claims, 1976 (the “Convention”) pursuant to subsection 26(1) of that Act, and the Canada Shipping Act, 2001, S.C. 2001, c. 26.
[52] In Radil Bros. Fishing Co. v. Canada (Department of Fisheries and Oceans, Pacific Region), [2002] 2 F.C. 219 (C.A.) at para. 60, the Federal Court of Appeal identified some of the factors that will distinguish a simple claim in contract from one where the “true essence of the contract relied upon is maritime”. At para. 60 the Court said the following:
60 None of these cases is helpful to the appellant. Quite to the contrary, they tend to show that the Court will not assert its admiralty jurisdiction in agency claims unless the true essence of the contract relied upon is maritime. This is not the case here, where the sole factor possibly connected to maritime law is the fact that the licence with respect to which the agency contract was entered into happens to be issued in relation to an activity occurring at sea. There is no contract for carriage of goods by sea. There is no marine insurance. There are no goods at issue. Nothing has happened at sea. There is no issue as to the seaworthiness of the ships. The ships are not party to the action. There are no in rem proceedings. There are no shipping agents. There are no admiralty laws or principles or practices applicable. The claim, at best and incidentally, may be said to relate to the ability of a ship to perform certain fishing activities in accordance with requirements that have nothing to do with navigation and shipping and everything to do with fisheries.
[53] Siemens is adopting a highly restrictive view of the legal context surrounding its claim for damages. On the basis of the evidence submitted and the arguments advanced by the parties in connection with the present motions, it is clear that many of the indicia of maritime jurisdiction that were identified in Radil Bros. are present. In my opinion, it is clear that the nature of Siemens’ claim is essentially maritime law.
[54] The Incident occurred on the water. Preparations for the transportation of the rotors involved marine surveyors, that is MMC and BMT, and a cargo insurer, that is AXA. The rotors were on board a ship, that is the SPM 125. The Incident was investigated in accordance with the Transport Canada Marine Safety Policy for investigating maritime occurrences under the authority of section 219 of the Canada Shipping Act, 2001.
[55] The misrepresentations alleged by Siemens relate to the preparation for loading the barge, raising an issue of seaworthiness. That issue is subject to applicable admiralty laws, principles and practices.
[56] The alleged breach of contract and negligence relate to an agreement for the carriage of goods by sea. Siemens argues that the purchase order, which is a contract, is not a matter subject to Canadian maritime law. Nevertheless, the object of that contract is the transportation of the rotors from the harbour in Saint John to the nuclear plant at Point Lepreau. The obligation of a carrier, in respect of a contract of carriage of goods, is to safely load and deliver the goods; see The “Muncaster Castle”, [1961] 1 Lloyd’s Rep. 57 (H.L.).
[57] MMC, marine surveyors, were engaged by Irving to provide marine architectural services. Irving’s responsibility for the actions, neglect or default of MMC can be assessed pursuant to paragraph 4 of Article 1 of the Convention.
[58] The right of BMT to limit its liability will be an issue for determination in the limitation proceedings. It was engaged by Siemens to “provide marine surveying services with respect to that aspect of the handling and transportation plan”. Marine surveying services are related to navigation and shipping.
[59] It is incorrect to say that Siemens’ claim for damages is beyond the jurisdiction of this Court because its final adjudication may involve the application of common law principles of tort. In Chartwell Shipping Limited v. Q.N.S. Paper Co. Ltd. (1989), 101 N.R. 1 (S.C.C.), the Supreme Court of Canada said that Canadian maritime law encompasses the common law principles of tort, contract, bailment and agency.
[60] Siemens’ argument that the nature of its claim has nothing to do with shipping is directly contradicted by the jurisprudence of the Supreme Court of Canada. In Isen, at para. 22, the Supreme Court of Canada said the following:
Commercial shipping was traditionally viewed as within the scope of Parliament's jurisdiction over navigation and shipping. Shipping contracts involve not only the safe carriage of goods over the sea, but also the movement of goods on and off a ship.
[61] The decisions in Dreifelds and Isen, referred to above, can be distinguished. In Dreifelds, the Ontario Court of Appeal held that the pleadings in that case concerned the preparation for and conduct of a scuba diving trip. The plaintiff did not plead any negligence on the part of the charter boat involved, that is anything related to navigation or shipping.
[62] In Isen, the accident occurred on land when a bungee cord being attached to a tarpaulin, on a pleasure craft in the course of preparing for transport of that craft on a provincial highway, snapped, causing injury to the plaintiff. The Supreme Court of Canada determined that the injury was caused by a negligent act which had nothing to do with navigation or shipping. The negligent act was subject to provincial law, not federal maritime law.
[63] Siemens also argues that this Court does not have jurisdiction over its claim because neither MMC nor BMT are entitled to limit their liability under the Act as they do not fall within the relevant statutory definitions, and in any event, are barred by Article 4 of the Convention from limiting their liability.
[64] Regardless of the merit of Siemens’ submissions regarding the entitlement of Irving, MMC and BMT to limit their liability, it is clear that the ultimate findings on these issues will be made with reference to the provisions of the MLA and the Convention. Put another way, Canadian maritime law will apply to the issues Siemens raises regarding the limitation of liability of Irving, MMC, and BMT.
[65] I agree with the arguments of Irving and BMT that the decision in TeleZone is not relevant to the issue of this Court’s jurisdiction over the claim arising in relation to the Incident. Even as pleaded in the Ontario proceedings, it is clear that Siemens’ claim is a maritime claim.
[66] There is concurrent jurisdiction in both the Federal Court and in the Ontario Superior Court of Justice over both the issues of liability and of limitation of liability. The jurisdiction of the Ontario Superior Court of Justice is not challenged by any of the Defendants.
(ii) Stay Motions
[67] Siemens, supported by AXA, seeks to stay the two limitation proceedings, both on an interlocutory and permanent basis. It wants the interlocutory stay in order to allow the Ontario Superior Court of Justice proceedings to continue through trial and adjudication. It wants a permanent stay on the grounds that limitation of liability is not available to Irving and MMC, having regard to Article 4 of the Convention.
[68] Irving, MMC and BMT, for their part, oppose this motion and seek to enjoin proceedings in any other Court, including the Ontario Superior Court of Justice, arguing that all issues relating to the Incident should be addressed in the Federal Court.
[69] The authority to stay proceedings in this Court flows from subsection 50(1) of the Federal Courts Act which provides as follows:
Stay of proceedings authorized
50. (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
Suspension d’instance
50. (1) La Cour d’appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire :
a) au motif que la demande est en instance devant un autre tribunal;
b) lorsque, pour quelque autre raison, l’intérêt de la justice l’exige.
[70] Siemens argues that both the circumstances identified in subsection 50(1) apply in this case, that a stay should be granted because a claim is being adjudicated in another court or jurisdiction and that a stay of the limitation proceedings is required in the interest of justice.
[71] Siemens points out that it is the only party who has suffered a loss. No other party is making a claim against Siemens and that the proceedings which it has instituted in the Ontario Superior Court of Justice is broader in scope than the limitation proceedings in the Federal Court. It further notes that with proceedings in both the Ontario Superior Court of Justice and this Court, there is a risk of inconsistent findings. It relies upon the decision in Jazz Air LP v. Ontario Port Authority (2009), 343 F.T.R. 165 (F.C.) at paras. 13, 31 and 32 to support its argument in this regard.
[72] Irving, MMC and BMT oppose Siemens’ motion for a stay. Among other things, they note that a stay pursuant to subsection 50(1) is a discretionary order. They argue that the interests of justice will be best served, with less inconvenience and expense to all parties, if the proceedings in this Court are allowed to proceed and proceedings in any other Court, including the current proceedings in the Ontario Superior Court of Justice, are enjoined.
[73] Irving, MMC and BMT are of one voice in arguing against Siemens’ stay motion, each of them referring to the broad powers conferred upon the Federal Court, as the Admiralty Court for the purposes of the Act, with respect to establishing the procedure in relation to the constitution and distribution of a limitation fund. These powers are described, not exclusively, in subsection 33(1) of the MLA which provides as follows:
Powers of Admiralty Court
33. (1) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28 or 29 of this Act or paragraph 1 of Article 6 or 7 of the Convention, the Admiralty Court, on application by that person or any other interested person, including a person who is a party to proceedings in relation to the same subject-matter before another court, tribunal or authority, may take any steps it considers appropriate, including
(a) determining the amount of the liability and providing for the constitution and distribution of a fund under Articles 11 and 12 of the Convention;
(b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within a certain time, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs; and
(c) enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than the Admiralty Court in relation to the same subject-matter.
Pouvoirs de la Cour d’amirauté
33. (1) Lorsque la responsabilité d’une personne est limitée aux termes des articles 28 ou 29 de la présente loi ou du paragraphe 1 des articles 6 ou 7 de la Convention, relativement à une créance — réelle ou appréhendée — , la Cour d’amirauté peut, à la demande de cette personne ou de tout autre intéressé — y compris une partie à une procédure relative à la même affaire devant tout autre tribunal ou autorité — , prendre toute mesure qu’elle juge indiquée, notamment :
a) déterminer le montant de la responsabilité et faire le nécessaire pour la constitution et la répartition du fonds de limitation correspondant, conformément aux articles 11 et 12 de la Convention;
b) joindre tout intéressé comme partie à la procédure, exclure tout créancier forclos, exiger une garantie des parties invoquant la limitation de responsa