This was a rehearing of an issue relating to a motion for a stay of proceedings brought by the carrier and in particular whether the forum selection clause in the shipping document applied, as required under a prior order of the Federal Court of Appeal.2

Facts: The plaintiff was the consignee of produce from Central America. It had a multi-year service contract with the carrier for cargos to be brought from Central America to Canada on a multimodal basis. Some cargos arrived damaged and suit was brought in the Federal Court of Canada. The carrier sought to invoke the forum selection clause in the contractual shipping documents to require that the claim be litigated in the United States of America.

Decision: The forum selection clause was enforceable. The provisions of the Canadian Marine Liability Act negating the preclusive effect of the forum selection clause did not apply, as the shipping documents involved in this case were waybills.

Held: (1) The claimant sued for cargo damage and relied on the Marine Liability Act, s.46, which permitted suit to be brought in Canada despite the existence of an exclusive forum selection clause in a “contract for the carriage of goods by water”. The issue was whether the shipping document involved was a contract of carriage of goods by water to which s.46 applied.

(2) Although the document was described as a bill of lading on its face, it was not a bill of lading. A bill of lading has three key elements, being: (a) a receipt for the goods; (b) evidence of terms of the contract of carriage; and (c) a document of title. If all three elements are present, then the shipping document is likely a bill of lading. If not, then it is likely not a bill of lading. With respect to being a document of title, it is not a document establishing the right of property in the goods, but rather the right to receive the goods from the carrier.

(3) The term “contract for the carriage of goods by water” had to be interpreted in light of the incorporation of the Hague Visby Rules in the Marine Liability Act. Those