Black & White Merchandising Co. Ltd. v. Deltrans International Shipping Corporation, 2019 FC 379 (2019-03-27)
Facts: The plaintiff ordered a cargo of children’s shoes and submitted a booking request with the defendant, which in turn contacted various third parties, including Delmar, to organize transportation of the cargo from China to Montreal. Delmar issued a bill of lading that specified Ningbo as the port of loading, Prince Rupert as the port of discharge and Montreal as the place of delivery with an estimated arrival date being 31 January 2017. The terms of the bill of lading specified the type of move as container yard to container yard. The cargo arrived on 5 February 2017 at the container yard in Montreal and was then to be sent to a third-party warehouse. On 6 February 2017 one of the third parties notified Delmar that the container in which the cargo was carried was stolen from that third-party warehouse. Delmar advised the Plaintiff that the container was stolen, and on 22 March 2017 the Plaintiff issued its Statement of Claim, alleging the loss of cargo was a result of the defendant’s breach of the contract of carriage and negligence. On 6 February 2019 the defendant brought this motion to strike the plaintiff’s claim.
Decision: Motion granted; claim struck.
Held: The plaintiff brought this action to Court pursuant to s. 22(2)(f) of the Federal Courts Act. The plaintiff’s affidavit provided that the bill of lading required the cargo to be delivered to the warehouse, and since the cargo was stolen from the warehouse of a third party, the defendant was liable for the loss. The defendant argued that the contractual obligations under the bill of lading ended with it delivered the cargo to the container yard, thus the obligations under the bill of lading were satisfied and complete prior to the theft from the warehouse. In finding that the plaintiff’s Statement of Claim did not assert the bill of lading required the cargo to be delivered to the warehouse, there was no alleged fact supporting the jurisdiction of the Court on the basis of the bill of lading or s. 22(2)(f). Further, the Court found no evidence tendered by the plaintiff as to its assertion that the defendant and Delmar were “one and the same” which would make the defendant liable for the loss. The court found that the transport of the cargo beyond container yard to container yard was not encompassed by the bill of lading and thus would not find jurisdiction under s. 22(2)(f). On that basis, the Court struck the claim without leave to amend.