Jian Sheng Co. v. Trans Aspiration ( The )

T-2219-96

Tremblay-Lamer J.

4/6/97

Motion for order overruling Prothonotary's order denying stay of proceedings-In February 1996, space booked on ship Trans Aspiration, owned by respondent Great Tempo S.A., for carriage of 2300 to 2500 MFBM of lumber from British Columbia to plaintiff in Taiwan-Carriage booked with defendant Sinotrans Canada Inc. (Sinotrans)-Booking note identifying Sinotrans as carrier, MacMillan Bloedel Ltd. as shipper and Trans Aspiration as vessel-On bill of lading, Sinotrans signed "as agents only for carrier: Trans Aspiration"-Jurisdiction clause providing dispute to be decided in country of carrrier-Identity of carrier clause-One quarter of cargo of lumber lost overboard during voyage-Plaintiff claimed US$395,865.92 for loss-Defendant filed motion for order staying proceedings, challenging Court's jurisdiction on basis of jurisdiction clause in bill of lading-In April 1997, defendant's motion denied on ground jurisdiction clause, offering no guide as to where action on bill of lading ought to be commenced, void for uncertainty-Motion allowed-Whether Prothonotary's decision based upon wrong principle-Prothonotary correctly decided booking note (and paramountcy clause therein) could not produce any effect vis-à-vis plaintiff, not party thereto-However, Prothonotary incorrectly found jurisdiction clause void for uncertainty-Under identity of carrier clause, defendant Great Tempo carrier-Paterson SS Ltd. v. Aluminum Co. of Can., [1951] S.C.R. 852 applied: under such charter, and in absence of undertaking on part of charterer, owner remains carrier for shipper-No joint venture between owner of vessel and its charterer in absence of express undertaking on charterer's part to this effect-On evidence herein, all of business of Great Tempo conducted from Hong Kong, and principal place of business Hong Kong-Defendants have established prima facie case there ought to be stay of present proceedings pursuant to jurisdiction clause in bill of lading-Plaintiff has failed to meet burden of demonstrating special circumstances militate in favour of Court exercising its discretion by not granting stay-Plaintiff has not explained or demonstrated why Hong Kong would not be appropriate forum-Plaintiff's principal place of business Taiwan and most of individuals involved either from Hong Kong, China or Taiwan.