Two passengers bought tickets from the defendant through an unidentified intermediary in May 2015 for a 14-day cruise in the Mediterranean Sea. On 24 September 2016, they arrived at the port of Civitavecchia, Italy, where the cruise began. Although they checked in four suitcases, only three of them made it to their room on the ship. The missing suitcase, containing valuable jewellery, was never found. The plaintiff insurance company indemnified the passengers for the value of the contents of the missing suitcase, namely CAD 63,350.90. It is thus subrogated in their rights. The plaintiff now sues the defendant for compensation. The defendant invokes the rules of Canadian maritime law to apply for this action to be dismissed on the grounds of limitation or, alternatively, the lack of jurisdiction of the Québec courts.

Held: Application dismissed.

The defendant maintains that the dispute between it and the plaintiff is governed by the provisions of Canadian maritime law. Under federal legislative jurisdiction, Canadian maritime law brings together a set of rules with imprecise outlines. Numerous judgments define its scope, in particular in relation to matters falling under provincial legislative competence. In Transport Desgagnés Inc v Wärtsilä Canada Inc, 2019 SCC 58 [32], its most recent judgment on the matter, the Supreme Court of Canada takes the position that 'when it comes to a dispute that can be governed by Canadian maritime law, courts must determine on a case-by-case basis whether Canadian maritime law can validly apply to it'.

It is necessary, however, to clearly define the perspective from which the preliminary argument raised by the defendant must be approached. Before deciding whether it is the rules of Canadian maritime law which should be applied, the Court must first determine whether the dispute is governed by Canadian law or by the law of another country. Given that the Court of Québec is seized of the dispute, it is the rules of private international law set out in the Civil Code of Québec (CCQ) which allow it to determine the law applicable to the substance of the dispute. The originating claim refers to a legal act concluded between the passengers and the defendant, namely the purchase of tickets for a cruise in the Mediterranean. This legal act meets the definition of a consumer contract in art 1384 of the CCQ: 'A consumer contract is a contract whose field of application is delimited by laws relating to consumer protection, by which one of the parties, being a natural person, the consumer, acquires, leases, borrows or otherwise procures, for personal, family or household purposes, goods or services from the other party, which offers such goods or services in the course of a business that it operates.' Article 3117 of the CCQ provides that '[t]he choice by the parties of the law applicable to a consumer contract cannot result in depriving the consumer of the protection afforded to him by the mandatory provisions of the law of the State in which he has his residence' in certain circumstances.

The application of these provisions is based on factual evidence: where the contract was entered into and under what circumstances; what the content of this contract is, what representations were made by the trader to the consumer, etc. However, the originating application gives little indication as to the precise circumstances which led to the purchase of tickets by the passengers. In the absence of any evidence, these allegations are insufficient to enable the Court to determine which law governs the legal relationship between the parties. It is therefore premature for the Court to rule on this subject now.

It follows that at this stage of the case the Court does not have to determine whether the plaintiff's claim is subject to Canadian maritime law, nor to define the possible scope of Canadian maritime law with respect to the dispute. The question raised by the preliminary plea is more limited. The defendant is seeking to use the provisions of the Athens Convention 1974 to have the plaintiff's claim rejected. It is the defendant who bears the burden of showing that this Convention is applicable to the dispute and that it renders the plaintiff's action inadmissible.

The Athens Convention is an international treaty concluded in 1974 between a number of sovereign States. It deals with liability for damage suffered by passengers during international transport by sea. As such, it is governed by the rules of public international law. In Canadian law, such a Convention does not have direct application with regard to litigants and must be incorporated therein by the competent legislative authority.

Article 14 of the Convention specifies, among other things, that no action for liability, in the event of loss or damage to luggage, may be brought against the carrier other than on the basis of the Convention. The defendant invokes the two-year limitation period in art 16. It also relies on art 17, which determines the jurisdiction of the Courts with regard to such claims. The defendant relies on s 37(1) of the Marine Liability Act, SC 2001, c 6 (the Act) to argue that the Athens Convention is applicable to the plaintiff's claim. This provision is located in Pt 4 of the Act, which deals with liability in relation to the carriage of passengers by water. It should be noted that the method used by the Parliament of Canada to give effect to the Athens Convention in Canadian law is atypical. Canada has not formally ratified the Convention and is not a party to it, but simply enforces its contents as national law.

Articles 1-22 of the Athens Convention are set out in Sch 2 of the Act. The expression 'have the force of law in Canada' used in s 37(1) of the Act gives these provisions of the Athens Convention the force of Canadian law. It incorporates them into Canadian federal law. This being the case, there nevertheless remains a difficulty of interpretation as to their application to situations which, as is the case here, present substantial foreign elements. If we confine ourselves to the allegations in the originating claim, the only connection between the litigation and Canada lies in the fact that the insureds of the plaintiff reside there. Even if arts 1-22 of the Athens Convention are incorporated into Canadian law, can they be applied to damage occurring abroad, on a foreign vessel, operated by a foreign company, without exceeding the scope of the Act? Does the mere fact that the party suffering the damage is domiciled in Canada, or that a Canadian court is seized of the claim, make these provisions mandatorily applicable to the dispute?

Article 2 of the Convention expresses its scope as follows:

1. This Convention shall apply to any international carriage if:

(a) the ship is flying the flag of or is registered in a State Party to this Convention, or

(b) the contract of carriage has been made in a State Party to this Convention, or

(c) the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

2. Notwithstanding paragraph 1 of this Article, this Convention shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another mode of transport, to a civil liability regime under the provisions of such convention, in so far as those provisions have mandatory application to carriage by sea.

In the proceedings, the allegations of the originating application and the documents alleged therein:

(a) do not identify the place of registration or flag of the vessel on which the passengers cruised;

(b) do not reveal where the contract was concluded between the passengers and the defendant;

(c) show that the places of departure and destination of the cruise are not in Canada, but do not indicate whether the countries in which they are located are States Parties to the Convention.

At this stage of the case, it is therefore not possible to identify a connecting factor which would make the Athens Convention clearly applicable to the dispute under s 37(1) of the Act .

In addition, the foreign elements present in the file raise doubts as to the scope of the Act with regard to an event that occurs outside Canada on a vessel that is not flying the Canadian flag or registered in Canada. A more explicit provision than that of s 37(1) of the Act would have been necessary to allow a conclusion that, under Canadian law, where damage occurred under the circumstances alleged in the introductory claim, the proceedings are effectively subject to the Athens Convention, despite the fact that the only element of connection with Canada is that the persons having suffered the damage reside there, or that a Canadian court is seized of the claim.

Most Canadian judgments which are based on the Athens Convention or on s 37(1) of the Act relate to events in Canada, or in connection with Canadian ships. The defendant also invokes three judgments which apply the Convention in the context of litigation relating to events which have occurred outside Canada: Beaumont v Norwegian Cruise Line Holdings Ltd, 2018 QCCQ 6477 (CMI241); Racette v Norwegian Cruise Line, 2019 QCCQ 3817 (CMI443); and Princess Cruises v Nicolazzo, 2009 CanLII 28217 (ON SCDC) (CMI1079). With respect, the Court comes to a different decision in this case.

Furthermore, it can be seen that cl 11 of the ticket contract invoked by the defendant makes the Athens Convention applicable only to cruises other than those which start and end in the USA or in a member country of the European Union. With regard to cruises that start and end in a member country of the European Union, as was the case here, this document instead makes applicable the provisions of Regulation 392/2009 of the European Parliament on the liability of carriers of passengers by sea in the event of an accident. The presence of such a clause creates an additional ambiguity as to the application of the Athens Convention.

In addition, it should be noted that if the plaintiff's claim is governed by Canadian maritime law, as the defendant claims, s 140 of the Act then provides for a time limit of three years. In Walsh v Croisières Lachance Inc, 2011 QCCQ 7073 (CMI1031), Tremblay J decided that this provision derogated from art 16 of the Athens Convention and that it waived the two-year limitation period stipulated therein.

The Court therefore concludes that s 37(1) of the Act does not render the plaintiff's claim inadmissible.

The defendant also argued that the proceedings should be stayed on the basis of an exclusive foreign forum clause in favour of Florida. At this stage of the case, however, the Court does not know whether this clause, like the rest of this document, had been brought to the attention of the passengers before they bought their tickets. The Court does not know whether they consented to it knowingly and whether they had the opportunity to negotiate terms with the defendant. In order to be able to give effect to the provisions of the ticket contract at this stage of the case, the Court would have to have clear and unequivocal evidence that the passengers fully consented to these terms and understood the implications thereof. As this evidence has not been produced, the defendant's argument must fail.

In these circumstances, the rule of private international law laid down by art 3149 of the CCQ must be applied: 'The Québec authorities are also competent to hear an action based on a consumer contract or on a labor contract if the consumer or worker has his domicile or residence in Québec'. The originating application alleges that the passengers reside in Québec. The Court therefore has jurisdiction over the plaintiff's claim.