A recent decision of the British Columbia Court of Appeal addresses the interesting issue of warranties in a marine insurance policy. The case is Elkhorn Developments Ltd. v. Sovereign General Insurance Co. Elkhorn’s barge sank in Brooks Bay and was a total constructive loss. Five days earlier it had been towed to Brooks Bay from Finn Bay, approximately 100… more »
In August, 1997 in this column, Gary Wharton wrote about the decision of the Federal Court Trial Division in Jian Sheng Co. Ltd. v M.V. Trans Aspiration. That decision was the result of an appeal from the Prothonotary’s order that denied the shipowner’s application for a stay of proceedings based on a jurisdiction clause in the bill of lading.… more »
The recent judgment of the Supreme Court of Canada in Armada Lines Ltd. v. Chaleur Fertilizers Ltd. overturned the decision of the Federal Court of Appeal. The judgment is important because it confirms the test of when a party may recover damages arising out of the wrongful arrest of that party’s property. In August 1996 in this column Thomas… more »
1. FAILURE TO CALL TREATING MEDICAL PRACTITIONERS
It is a long recognized common law principle that the failure to produce evidence which would “naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.”
This principle has been applied by the courts in British Columbia, the seminal… more »
Arbitration is a dispute resolution mechanism that is prevalent throughout the international shipping community. At any given time various foreign arbitration tribunals routinely hear evidence and make orders regarding claims between disputing parties. These bodies also grant monetary awards which a successful claimant may ultimately, although in some cases not 100% successfully, enforce against the assets of the unsuccessful party.… more »
At the time of writing this article, Colin Powel had just addressed the United Nations Security Counsel and a war in Iraq is conceivably mere weeks away. However this potential war is characterized, it is beyond doubt that it is in extricably linked to the attack on New York on September 11, 2001 and the resultant “War on Terrorism”. Over… more »
It is common knowledge that most fleet protection and indemnity policies of insurance contain a form of collision clause which provides that if the insured is involved in a collision and as a consequence the insured “shall be liable to pay and shall pay by way of damages”, to the Third Party, then the Underwriters will pay such sum… more »
In Canada, and no doubt elsewhere, the relationship between shippers, freight forwarders and carriers generally works to the mutual benefit of all. However, in tough economic times, the bankruptcy of a freight forwarder often will leave the carrier and shipper little choice but to litigate a dispute over the freight. The not unusual circumstances involve a situation where the shipper… more »
The typical ocean Bill of Lading in its common form contain numerous terms and conditions usually found on the reverse side. Typical clauses include sub-contracting and indemnity provisions (Himalaya clause) and carrier’s responsibility provisions. In a recent British Columbia Court of Appeal decision in Valmet Paper Machinery Inc. v. H.A. Davis Transport Ltd., the Court of Appeal considered a… more »
It often happens in tougher economic climates that two relatively innocent parties are left to litigate a dispute caused by a third company which has gone out of business. In a recent Federal Court of Canada decision the Court was faced with just this problem. Mediterranean Shipping Company (“Mediterranean”), an ocean carrier, sought to recover from BPB Westroc Inc. (“Westroc”),… more »