This was a cargo claim involving the shipment of 18,276 kg of silver ingots on a container yard to container yard (CY/CY) basis from Busan, Korea, to Vancouver, Canada, on the Georg Maersk, with on-carriage by rail to Montreal, pursuant to a multimodal transport bill of lading issued in Seoul by Woowon Sea & Air Co Ltd (Woowon). Clause 4 of the bill of lading provided:

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 [sic].

The vessel arrived in Vancouver on 7 January 2020. On 10 January 2020, the cargo was loaded onto a Canadian National Railway Co (CN) rail car destined for Montreal, where the container arrived on 16 January 2020. In the interim, on 6 January 2020, the maritime carrier AP Moller-Maersk A/S (Maersk) emailed the pick-up code to Binex Line Corp (Binex). That email was accessed by thieves who used the information to divert the cargo to a warehouse in LaSalle, Quebec, where it disappeared.

The intended consignee, Brink's Global Services Korea Ltd (Brink's) sued Woowon in the Canadian Federal Court. Woowon brought parallel proceedings against Brink's in the Seoul Southern District Court in South Korea, seeking an order that it was not liable for the stolen cargo. Woowon sought a stay of the Canadian proceedings in favour of the South Korean proceedings on the basis of the exclusive jurisdiction clause in the bill of lading. The Case Management Judge (CMJ) dismissed Woowon's motion: see Brink's Global Services Korea Ltd v Binex Line Corp 2022 FC 571 (CMI2075). Woowon appealed.

Held: Appeal with respect to jurisdiction dismissed.

Woowon submits that this Court lacks jurisdiction based on Black & White Merchandising Co Ltd v Deltrans International Shipping Corp 2019 FC 379. Woowon argues that Brink's' loss occurred during inland warehousing after the cargo was delivered (rather than during transit), so that the essence of the claim is theft after the conclusion or fulfilment of the contract of carriage and during warehousing, thus falling outside the scope of s 22(2)(f) of the Federal Courts Act. There is no merit in this argument. Deltrans is clearly distinguishable on its facts. The conclusion that the Federal Court has jurisdiction simpliciter is also supported by ZI Pompey Industrie v ECU-Line NV 2003 SCC 27, [2003] 1 SCR 450. The Supreme Court held 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'.

Woowon further asserts that art 10 of the Hague-Visby Rules limits the scope of the Rules to the carriage of goods on a ship by water between two ports. Woowon submits that 'according to Article I(b) and (e), II and X taken together, the Hague-Visby Rules apply only "from the time when the goods are loaded on to the time they are discharged from the ship" (this classic rule is better known as "tackle to tackle")'. Based on this argument, Woowon submits that s 46(1) of the Marine Liability Act, SC 2001, c 6 (the MLA) should only apply to cargo losses which occurred during the compulsory application of the Hague-Visby Rules. Section 46(1) of the MLA provides:

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

(a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada;

(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or

(c) the contract was made in Canada.

However, limiting the application of s 46(1) of the MLA to only where losses took place during the ocean leg of transport is not supported by any jurisprudence.

In this regard, Woowon relies on SDV Logistics (Canada) Inc v SDV International Logistics 2006 QCCA 750 [35], a decision of the Quebec Court of Appeal: 'Paragraph (e) of Article I of the [Hague Visby Rules] states that the term, "carriage of goods" covers the period from the time when the goods are loaded on to the time they are discharged from the ship. This means that the Rules do not apply to operations prior to transport by water proper.'

While SDV Logistics found on its facts that the Hague-Visby Rules do not apply to operations prior to transport by water, Woowon argues that the Rules should likewise not apply after transport by water, ie that they do not apply after discharge of the cargo in Vancouver, at which point carriage under the multimodal through bill of lading became the responsibility of CN to Montreal. However, there is no support for the proposition that the determination of what constitutes a contract for the carriage of goods by water must follow the compulsorily applicable liability regime.

The CMJ did not err in concluding that this case satisfied the requirements of s 46(1)(a) of the MLA. This is unanswerably the case. Thus it is not necessary to consider whether ss 46(1)(b) or 46(1)(c) of the MLA also apply.