Conti 24, Alemania Schiffahrts-GMBH & Co KG MS ‘Conti Lissabon’ (owners of Hanjin Vienna) applied to dismiss the action by Canadian National Railway Co (plaintiff) against it on the grounds that the amended statement of claim disclosed no reasonable cause of action within the subject-matter jurisdiction of the court or, in the alternative, that the action as against Hanjin Vienna and its owners was scandalous, frivolous, and vexatious.

Hanjin Shipping Co Ltd (first defendant), recently defunct and insolvent, operated a worldwide multimodal, door-to-door, liner container service. It chartered various ships, including Hanjin Vienna, a German ship, to perform the sea leg of the carriage. It hired the plaintiff to perform the North-American inland leg. The plaintiff would pick up inbound containers at Vancouver and Prince Rupert terminals and deliver them to consignees at destination. It would also carry containers to the Vancouver and Prince Rupert terminals for export.

The plaintiff asserted that Hanjin was indebted to it for approximately CAD 20,000,000, a portion of which related to the Hanjin Vienna. It alleged that it was in a contractual relationship, not only with Hanjin, but also with the owners of the ships it chartered, more particularly, the owners of the Hanjin Vienna.

The plaintiff’s claim was not a claim relating to loss or damage to goods, but rather one for non-payment of freight. The issue was whether the services allegedly rendered to the Hanjin Vienna were supplied for its operation.

Held: Motion dismissed with costs.

It was not plain and obvious that the Court did not have jurisdiction to adjudicate the plaintiff’s claim on the merits because the claim was arguable. It was, however, plain and obvious that the plaintiff’s claim was not scandalous, frivolous, nor vexatious.

The bill of lading defined the carrier as not only meaning Hanjin Shipping Co Ltd but also its ‘vessels, agents and subcontractors at all stages of carriage; in context of Multimodal Transportation’. It was thus certainly arguable that there was, in fact and in law, a contractual relationship between the plaintiff and the owners of the Hanjin Vienna. The bill of lading referred to in the ITO-International Terminal Operators Ltd v Miida Electronics Inc (Buenos Aires Maru) [1986] 1 SCR 752 was, however, a port-to-port bill, while those in the present case were multimodal through bills of lading.

The words ‘maritime’ and ‘admiralty’ should be interpreted within the modern context of commerce and shipping. In 2009 the United Nations Commission on International Trade Law (UNCITRAL) enacted the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules). The preamble of the Rotterdam Rules refers to the Hague Rules and Hamburg Rules but notes that technological and commercial developments have taken place since then. Chapter 1 of the Convention defines a contract of carriage as meaning a contract in which a carrier, against a payment of freight, undertakes to carry goods from one place to another. The contract must provide for carriage by sea and may provide for carriage by other modes of transport.

The Rotterdam Rules have been signed but, as yet, are not in force because the Rules have not been ratified by a sufficient number of States. Canada is not a party thereto. It is not suggested that the Rotterdam Rules are part of international law and enforceable in Canada. Even if the Convention had been signed by Canada, it would not form part of Canadian domestic law unless implemented by legislation. However, in Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1, the Court held that international instruments, although not incorporated into Canadian domestic law, could influence the Court’s interpretation of the Charter. If the Constitution is a living tree, our understanding of navigation and shipping, and lines of steamships, may evolve from time to time.