Arc-En-CielProduce Inc. v. The Ship “BF Leticia” et. al.
2022 FC 843
Federal Court of Canada, June 7, 2022
Facts: Arc-En-Ciel Produce Inc. imported fresh produce from Central America under a long-standing transportation arrangement with Great White Fleet. After several shipments arrived damaged, Arc-En-Ciel commenced proceedings in the Federal Court of Canada. The carrier sought a stay of the proceedings based on forum selection clauses in the shipping documents requiring disputes to be litigated before the United States District Court for the Southern District of New York.
Issue: Whether the shipping documents constituted bills of lading or similar documents of title such that s. 46 of the Marine Liability Act applied and permitted the plaintiff to sue in Canada notwithstanding the exclusive foreign forum clause.
Decision: The Court held that the shipping documents were sea waybills rather than bills of lading. Although labelled "bills of lading," they were not documents of title because they were non-negotiable and did not need to be presented to obtain delivery of the cargo. Accordingly, the Hague-Visby Rules and the statutory regime incorporated through ss. 43 and 46 of the Marine Liability Act did not apply.
Held: Since s. 46 did not apply, the forum selection clauses remained enforceable. The plaintiff also failed to establish strong cause for refusing enforcement of those clauses. The Court therefore granted a stay of the Canadian proceedings in favour of litigation in New York.