NADA ELROUMI v. 9147-1425 QUÉBEC INC., 2018 FC 633

Date: 20180618 Docket: T-1974-17 Citation: 2018 FC 633 Ottawa, Ontario, June 18, 2018 PRESENT: The Honourable Madam Justice Gagné BETWEEN: NADA ELROUMI AND 9147-1425 QUÉBEC INC. collectively the “Plaintiffs” or individually the “Plaintiff” and SHENZHEN TOP CHINA IMP & EXP CO., LTD CHINA AND FOSHAN HAOJIA CRAFTS CO., LTD. AND HAOJIA INDUSTRY CO LIMITED AND CHINA PACIFIC PROPERTY INSURANCE CO., LTD. AND JET-SEA INTERNATIONAL SHIPPING INC. AND ENTREPOT CANCHI collectively the “Defendants” or individually the “Defendant” and CMA CGM third party ORDER AND REASONS I.

Overview and Relevant Facts [ 1 ] Entrepot Canchi and CMA CGM have each presented a motion for an order striking out, respectively, the Plaintiffs’ claim against Entrepot Canchi, and Entrepot Canchi’s third party claim against CMA CGM. They both argue that this Court lacks jurisdiction to hear the claim against Entrepot Canchi. Should the latter fall, so will Entrepot Canchi’s third party claim against CMA CGM. [ 2 ] In their action, the Plaintiffs state that they purchased certain goods from Defendants Foshan Haojia Crafts Co., Ltd. and Hoajia Industry Co.

Limited and paid for the shipment of those goods from Huang Pu, China, to Montréal, Quebec. [ 3 ] The three original bills of lading, issued by King Freight International Corp., indicate that the container containing the Plaintiffs’ goods was loaded on board the vessel Hai Bang Da. Montréal was identified as the port of discharge and delivery and the Plaintiff Nada Elroumi was named as the consignee and notifying party. [ 4 ] A few days later, a sea waybill was issued by CMA CGM.

This document identified King Freight International Corp. as the shipper and Jet-Sea International Shipping Inc. [Jet-Sea] as the consignee and notifying party. It also indicated Hong Kong as the port of loading, Vancouver as the port of discharge and Montréal as the port of delivery. [ 5 ] The purchased goods were transported from Vancouver to Montréal by train and once at the final destination, the Plaintiffs and/or Jet-Sea hired Entrepot Canchi to pick them up at the train terminal and deliver them to Ms. Elroumi’s residence in Laval, Quebec. [ 6 ] After having cleared customs, Ms.

Elroumi was told that the purchased goods were damaged and that the container had to be delivered to her residence by Entrepot Canchi, as she was responsible for unloading the goods. [ 7 ] The Plaintiffs made a claim against the defendant insurer and received partial compensation for their loss. [ 8 ] Not knowing when, how and by whom the goods were damaged, the Plaintiffs issued their statement of claim, almost three years

after receiving the shipment, against the vendors/shippers, the insurer, the transport agent and the land storage and transportationcompany. Neither of the ocean carriers, who were both named on the bills of lading, was initially named as defendants. II. The Law [9] In order to determine whether this Court has jurisdiction over a subject matter, the test set out by the Supreme Court of Canada inITO-Int’l Terminal Operators v Miida Electronics, (SCC), [1986] 1 SCR 752 [ITO] at page 766, must be met: 1. There must be a statutory grant of jurisdiction by Parliament. 2.

There must be an existing body of federal law which is essential to the disposition of the case and which nourishes thestatutory grant of jurisdiction. 3. The law on which the case is based must be a “law of Canada” as the phrase is used in s. 101 of the Constitution Act,1867. [10] The Federal Court’s statutory grant of jurisdiction in maritime law is found in paragraph 22(2)(

f) of the Federal Courts Act, RSC1985, c F-7 [Act], and reads as follows: 22.(1) …

(2) Without limiting the generality of subsection (1), … (

f) any claim arising out of an agreement relating to the carriage of goods on a ship under a through bill of lading, or inrespect of which a through bill of lading is intended to be issued, for loss or damage to goods occurring at any time or placeduring transit; [11] The jurisprudence sets out that the jurisdiction of this Court to hear claims against ocean carriers extends beyond marinetransportation when goods continue their journey after discharge under a through bill of lading. In other words, a claim falls within thepurview of paragraph 22(2)(

f) of the Act when it is made pursuant to a through bill of lading contract (Matsuura Machiner Corp v HapagLloyd AG, (FCA), [1997] FCJ No 360 (QL) at para 7; Garfield Container Transport Inc v Uniroyal Goodrich CanadaInc, [1998] FCJ No 584 (QL) at para 4; Marley Co v Cast North America

(1983) Inc, [1995] FCJ No 489 (QL) at para 9; Certainunderwriters at lloyd’s v Mediterranean Shipping Company SA, 2017 FC 893 at paras 50-51). [12] In exceptional circumstances, the Supreme Court of Canada found in ITO that the jurisdiction of this Court extended to theresponsibility of the terminal operator.

Those special circumstances are enunciated at pages 775 and 776 of the Court’s reasons: It is clear, in my view, that such incidental storage by the carrier itself or by a third party under contract to the carrier is alsoa matter of maritime concern by virtue of the “close, practical relationship of the terminal operation to the performance ofthe contract of carriage” (per Le Dain J. in the Court of Appeal).

It may then be concluded that cargo-handling andincidental storage before delivery and before the goods pass from the custody of a terminal operator within the port area issufficiently linked to the contract of carriage by sea to constitute a maritime matter within the ambit of Canadian maritimelaw, as defined in s. 2 of the Federal Court Act. At the risk of repeating myself, I would stress that the maritime nature of this case depends upon three significant factors.The first is the proximity of the terminal operation to the sea, that is, it is within the area which constitutes the port ofMontreal.

The second is the connection between the terminal operator's activities within the port area and the contract ofcarriage by sea. The third is the fact that the storage at issue was short-term pending final delivery to the consignee. In myview, it is these factors, taken together, which characterize this case as one involving Canadian maritime law. III. Analysis [13] In the present case, the through bills of lading cover the liability of the ocean carriers, King Freight International Corp. and CMACGM, from the port of loading to the port of discharge, which is Montréal.

Had the Plaintiffs sued either one of them, they would havehad a valid claim whether the damages occurred during sea transportation from Huang Pu to Vancouver or during rail transportationfrom Vancouver to Montréal, and this Court would have had jurisdiction to hear that claim. [14] However, the fact that the ocean carriers were responsible for the entire segment covered by the bills of lading does not extend thejurisdiction of this Court to hear claims against parties to other contracts of carriage, such as rail and land carriers (Marley Co, above atpara 17). [15] Entrepot Canchi is a land carrier governed by provincial law.

The Superior Court of Quebec (or the Court of Quebec if the value ofthe subject matter of the dispute or the amount claimed is less than $85,000, exclusive of interest) has exclusive jurisdiction to hear aclaim based on a contract entered into by the Plaintiffs and Entrepot Canchi, a land carrier. [16] It is therefore plain and obvious that this Court lacks jurisdiction to entertain the Plaintiffs’ claim against Entrepot Canchi and, as aconsequence, it also lacks jurisdiction to entertain Entrepot Canchi’s third party claim against CMA CGM.

Rules 193 and 194 of theFederal Courts Rules, SOR/98-106, clearly stipulate that a third party is one whom the defendant claims is or may be liable to him or herfor all or part of the plaintiff’s claim. If the plaintiff’s claim against that defendant does not fall under the statutory jurisdiction of thisCourt, nor does this defendant’s third party claim.

IV. Conclusion [ 17 ] For these reasons, Entrepot Canchi and CMA CGM’s motions are granted, the Plaintiffs’ claim against Entrepot Canchi and Entrepot Canchi’s third party claim against CMA CGM are struck out. ORDER in T-1974-17 THIS COURT ORDERS that : 1 . Entrepot Canchi and CMA CGM’s motions are granted; 2 . The Plaintiffs’ claim against Entrepot Canchi is struck out; 3 . Entrepot Canchi’s third party claim against CMA CGM is struck out; 4 .

Costs in the amount of $500 are granted in favour of each of Entrepot Canchi and CMA CGM, inclusive of disbursements and interests. “Jocelyne Gagné” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1974-17 STYLE OF CAUSE: NADA ELROUMI ET AL v SHENZHEN TOP CHINA IMP & EXP CO., LTD CHINA ET AL PLACE OF HEARING: MONTRÉAL, QUEBEC DATE OF HEARING: MAY 15, 2018 ORDER AND REASONS: GAGNÉ J.

DATED: june 18, 2018 APPEARANCES : Giovannina Diodati For The PLAINTIFF Alessandra Ionata For The DEFENDANT Jean-François Bilodeau FOR THIRD PARTY SOLICITORS OF RECORD : Giovanna Diodati Montréal, Quebec For The Applicant Gasco Goodhue St-Germain LLP Montréal, Quebec For The DEFENDANT Robinson Sheppard Shapiro LLP Montréal, Quebec FOR THIRD PARTY