Incremona-Salerno v. The “Castor” and “Katsuragi”

The issue in these applications was whether s. 46(1) of the he Marine Liability Act, (which provides that notwithstanding any jurisdiction or arbitration clause claims arising under a contract of carriage of goods by water may be brought in Canada where inter alia the port of loading or port of discharge is in Canada) applies to actions commenced prior to 8 August 2001, the date the Act came into force. The applications arose out of a contract for the carriage of goods by water from Italy to Canada in 1999. In February and March 2001, prior to the coming into force of section 46(1) of the Marine Liability Act , the Defendants brought the applications to stay the proceedings relying upon a jurisdiction clause in the bill of lading that gave exclusive jurisdiction to the courts of Hamburg. The motions, however, were not heard until after the coming into force of the Marine Liability Act and the Plaintiff argued that the Act applied. At first instance, the Motions Judge agreed with the Plaintiff and dismissed the stay applications. On appeal, however, the Court of Appeal held that section 46(1) was not retroactive and did not apply to actions commenced prior to 8 August 2001.