Date: 20000524
Docket: A-651-98
A-76-99
| CORAM: LINDEN, J.A., |
SEXTON, J.A.,
MALONE, J.A.
A-651-98
ACTION IN REM AGAINST THE DEFENDANT SHIPS "STAR DOVER",
"STAR GRAN", "VERITAS" and "STEPHANIE"
BETWEEN:
FIBRECO PULP INC., FIBRECO EXPORT INC.,
373877 B.C. LTD., EKMAN LEIBIG AB,
ENSO-GUTZEIT OY
Appellants
and
STAR SHIPPING A/S, SQUAMISH
TERMINALS LTD., FURNESS NEOBULK
SERVICES b.v., DOVER INC., KRAFT LINE AS,
KG STEPHANIEBETEILIGUNGSGES mbH & Co.,
F.S. SWITYNK AND THE OWNERS AND OTHERS
INTERESTED IN THE SHIPS "STAR DOVER",
"STAR GRAN", "VERITAS" AND "STEPHANIE"
Respondent
AND:
A-76-99
| ACTION IN REM AGAINST THE DEFENDANT SHIPS "STAR DOVER", "STAR GRAN", "VERITAS" AND "STEPHANIE" |
BETWEEN:
STAR SHIPPING A/S, DOVER INC.,
KRAFT LINE AS, KG STEPHANIEGETEILIGUNGSGES
mbH & Co., F.S. SWITYNK
Appellants
and
FIBRECO PULP INC.,
FIBRECO EXPORT INC
373877 B.C. LTD., EKMAN LEIBIG AB,
ENSO-GUTZEIT OY and SQUAMISH TERMINALS LTD.
Respondents
REASONS FOR JUDGMENT
SEXTON, J.A.
[1] This case involves the shipment of 2 loads of wood pulp from British Columbia to Finland via Rotterdam. Two ships, owned by different owners, carried the wood pulp from B.C. to Rotterdam. Two other ships owned by two other owners carried the wood pulp from Rotterdam to Finland. When the ships were unloaded in Rotterdam, the wood pulp was found to be damaged. Altogether there were 5 plaintiffs and 10 defendants (including the ships themselves) named in the action. The parties and the ships have close connections with various jurisdictions including British Columbia, Sweden, Finland, Norway, Liberia, Bermuda, U.S.A., Panama, Japan and Denmark. As is readily apparent, the facts are complex. They are clearly set out in the reasons of the Prothonotary reported at (1998) 145 F.T.R. 125.
[2] The plaintiffs commenced their action in this Court but all of the defendants except for one moved to stay the action arguing that the dispute should be arbitrated in London or alternatively litigated in Norway.
[3] One of the plaintiffs, Ekman Leibig AB, and the defendant, Star Shipping A/S, which had contracted to carry out the entire carriage of wood pulp, had agreed to arbitrate any dispute in London. This clause was contained in the contract of affreightment. The plaintiff Fibreco Pulp Inc. had signed that contract evidencing its agreement and approval thereof. While this does not necessarily demonstrate that Fibreco was a party to the contract, it does show that Fibreco was aware from the contract that arbitration of any dispute was a distinct possibility.
[4] Faced with the multiplicity of jurisdictions and competing arguments as to the proper forum, none of which were ideal, the Prothonotary exercised his discretion by staying the action in this Court so that the London arbitration would take place first. He did this with the additional knowledge that two of the other defendants had also agreed to submit to arbitration in London and he was therefore of the view that the arbitration might well resolve the whole claim except as against Squamish Terminals Ltd.
[5] The Prothonotary was of the view that the stay pending arbitration was preferable either to splitting the claim into less manageable fractions in various jurisdictions or allowing the claim in this Court to proceed with the possibility of conflicting results.
[6] The Prothonotary further ordered that the security posted by one of the owners of the ships in order to obtain its release after it was arrested by the plaintiffs, be returned because he found that the ship no longer was owned by the company which had allegedly caused the damage to the wood pulp.
[7] The Motions Judge upheld the decision of the Prothonotary. While he mistakenly said that the plaintiffs had filed no evidence, we do not think that this error is significant enough to cause us to reach a conclusion different from his.
[8] In essence, he agreed with the Prothonotary. We are unable to conclude that the Prothonotary proceeded on any erroneous principle of law, or misapprehension of the facts or that the decision resulted in any unavoidable injustice. [see Suresh v. Canada [1998] F.C.J. No. 1012 (C.A.)]
[9] It is clear that the result is not entirely satisfactory. Ideally, the parties should be able to litigate their claims all in one action in one place. Obviously, legislation is required so as to facilitate this. Hopefully such proposed legislation as Bill S-17 The Marine Liability Act, if enacted, will accomplish such purpose. However, until that happens, we must abide by the law as it stands.
[10] With respect to the finding of the Prothonotary striking out the claim against the Star Gran, we are of the view that he made no error. There was sufficient evidence on which he could conclude that the beneficial owner of the Star Gran, at the time of the carriage of the pulp is not the same entity that is the present beneficial owner.
[11] On the application before the Motions Judge, the respondents sought to introduce the Affidavit of a Mr. Epps. The Motions Judge refused to accept the Affidavit for filing.
[12] The prerequisites for the filing of new evidence on an appeal have not been met here. Specifically there is no indication that this evidence would not have been available to be placed before the Prothonotary. The appeal on this issue will be dismissed without costs.
[13] The appeal by the appellants (plaintiffs) will be dismissed with costs.
(Sgd.) "J. Edgar Sexton"
J.A.
May 24, 2000
Vancouver, British Columbia
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-651-98 & A-76-99
STYLE OF CAUSE: Fibreco Pulp Inc et al
v.
Star Shipping A/S Squamish Terminals Ltd et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 24, 2000
REASONS FOR JUDGMENT BY SEXTON, J.A.
| CONCURRED IN BY: Linden, J.A., |
Malone, J.A.
DATED: May 24, 2000
APPEARANCES:
Mr. Doug Schmitt For the Appellants
| Mr. Peter Swanson For the Respondent Star Shipping A/S et al |
| Mr. Robert Lonergan For the Respondent Squamish Terminals Ltd |
SOLICITORS OF RECORD:
| McEwen Schmitt & Co |
| Vancouver, BC For the Appellants |
Campney & Murphy
| Vancouver, BC For the Respondent Star Shipping A/S et al |
Fasken Martineau DuMoulin
| Vancouver, BC For the Respondent Squamish Terminals Ltd |