Nicolazzo (the respondent) booked a cruise with Princess Cruises (the appellant). The booking was made in Hamilton, Ontario, through the respondent's travel agent. The respondent embarked in Italy and disembarked in England. The respondent pleaded that during the cruise, about CAD 5,000 worth of foreign currency was stolen from the safe in the stateroom due to the negligence of the appellant. The appellant brought a motion for summary judgment dismissing the action on the basis that the Court lacked territorial jurisdiction. The motion was dismissed. The appellant appealed.

Held: Appeal allowed.

The Marine Liability Act, SC 2001, c 6 (the Act) governed territorial jurisdiction over the dispute. Section 37 of the Act gave the force of law to arts 1-22 of the Athens Convention 1974. Article 2 of the Convention provided as follows:

1. This Convention shall apply to any international carriage if:

(a) the ship is flying the flag of or is registered in a State Party to this Convention, or

(b) the contract of carriage has been made in a State Party to this Convention, or

(c) the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

Canada was a State Party to the Convention. The contract was made in Canada. Therefore, under art 2.1.b of the Convention, the Convention applied to this carriage.

In addition, art 17 of the Convention provided:

1. An action arising under this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the Court is located in a State Party to this Convention:

(a) the Court of the place of permanent residence or principal place of business of the defendant, or

(b) the Court of the place of departure or that of the destination according to the contract of carriage, or

(c) a court of the State of the domicile or permanent residence of the claimant, if the defendant has a place of business and is subject to jurisdiction in that State, or

(d) a court of the State where the contract of carriage was made, if the defendant has a place of business and is subject to jurisdiction in that State.

The trial Judge found that the action could be brought in Ontario under art 17.1.c or art 17.1.d of the Convention on the ground that the appellant had a place of business in Canada. However, it was plain that the appellant had no place of business in Canada, and that arts 17.1.c and 17.1.d therefore had no application. In addition, art 17.1.a of the Convention did not apply. The permanent residence or principal place of business of the appellant was the USA, which was not a State Party of the Athens Convention 1974. However, art 17.1.b did apply, because the place of destination, the UK, was a State Party. Or, if Italy, the place of departure, was also a State Party, the respondent had two choices of venue. The action could not be brought in Canada if art 17 of the Convention required it to be brought elsewhere.