Developments in Canadian Maritime Law 2000

I. Marine Insurance

II. Carriage of Goods

III. Arbitration/Jurisdiction Clauses

IV. Canadian Maritime Law/ Federal Court Jurisdiction

V. Limitation of Liability

VI. Admiralty Practice

VII. Mortgages, Liens and Priorities

VIII. Miscellaneous

TABLE OF CASES

I. Marine Insurance

Nuvo Electronics Inc. v London Assurance et al.,

(2000) 49 O.R. (3d) 374 (Ont. S.C.)

This matter arose out of the loss of 15 cartons of integrated circuits valued at US$1,403,000.00 and carried by air from San Francisco to Toronto. The shipment left San Franciso on August 10, 1996, and arrived at Toronto on the morning of August 11, 1996. It was then placed in the Air Canada cargo warehouse but was never seen again. The Plaintiff consignee commenced this action for the value of the lost cargo against its cargo underwriter and the air carrier. (That part of the judgment dealing with the claim against the carrier is considered below under "Carriage of Goods".) The cargo underwriter denied coverage on the basis that it had cancelled the policy of insurance prior to the loss and also on the basis that the assured had failed to disclose prior losses. The shipment was insured under an open cargo policy that provided that it could be cancelled upon 30 days written notice "but such cancellation shall not affect any risks which have already attached hereunder". The policy further provided that notices mailed to the broker were deemed to have been received by the assured. On July 10, 1996, the underwriter faxed a notice of cancellation to the broker giving 30 days notice of cancellation and stating that the cancellation would be effective on August 10, 1996. The underwriter took the position that the policy was cancelled as of 12:01 a.m. on August 10, 1996. The Court, however, held that there were three problems with the underwriter’s notice of cancellation. First, the notice of cancellation was vague and imprecise in that it did not say how the 30 days was to be calculated and did not specify the exact time on August 10, 1996, the cancellation would be effective. The Court held that the notice of cancellation could be interpreted to mean that coverage would be in force for the entire day of August 10, 1996. Second, the policy required that the notice of cancellation be mailed to the broker. Third, the policy also contained statutory conditions which contained clauses dealing with termination that were different from those in the body of the policy and which the underwriter made no attempt to comply with. The Court therefore held that the policy was ambiguous and the underwriter had failed to give proper notice of cancellation.

The Court next turned to the issue of whether the policy was void ab initio by reason of the assured’s failure to disclose at the time it applied for the policy that it had suffered prior losses. The evidence disclosed that the assured’s broker had advised the underwriter that there had been no losses except for one lost package (value $300.00) three years earlier. This information was not accurate. In fact, the assured had suffered a series of losses in the hands of its courier totalling $18,000.00. This information did not come to the attention of the underwriter until after the loss in issue. The underwriter submitted that these facts were material to the risk and should have been disclosed. The underwriter led the evidence of an expert independent underwriter to the effect that the courier losses would have caused him to either increase the premium or modify the conditions of carriage. The Court, however, found as a fact that the Defendant underwriter would have written the risk even if it had been advised of the prior losses. Under these circumstances it was irrelevant what an independent underwriter would have done. The Court held that a successful defence on the basis of material non-disclosure requires proof that, if the facts had been disclosed, the underwriter who wrote the risk would have declined the risk or required a higher premium and evidence from an independent "prudent" underwriter to the same effect. Accordingly, the Court held that the underwriter had failed to prove material non-disclosure and the underwriter was held liable for the insured value of the lost cargo. (Note: The underwriter was not without a remedy as there was a recovery from the air carrier which is detailed below under "Carriage of Goods".)

Liability Policies - Interpretation - Illegality - Pay to be Paid

Conohan v The Cooperators,

(November 28, 2000) No. T-2092-97 (F.C.T.D.), [2000] F.C.J. No. 1969

This case arose out of a collision between the "Lady Brittany" and "Cape Light II" off Prince Edward Island. At the time of the collision the "Cape Light II" was at anchor. Following the collision, blood alcohol readings were taken from the Master of the "Lady Brittany" which indicated his blood alcohol content was above the legal limit. An action was commenced by the owners of the "Cape Light II" against the "Lady Brittany". The insurers of the "Lady Brittany" refused to defend or participate in that action alleging that the insured was in breach of the terms of the policy in that the vessel was being operated in an illegal manner. The owner of the "Lady Brittany" thereafter admitted liability for the collision, confessed to judgment and assigned all of his rights of claim against his insurers to the owners and underwriters of the "Cape Light II". The owners and underwriters of the "Cape Light II" then brought this action against the Defendant, the insurer of the "Lady Brittany". The Defendant denied it was liable on various grounds. First, it alleged that there was a breach of the implied warranty of legality contained in s. 34 of the Marine Insurance Act. Second, it alleged that the collision was caused by "wilful misconduct", an excluded peril under s. 53 of the Marine Insurance Act. Third, it alleged that the collision was caused by "drunken or impaired operation of the vessel or other wrongful act" an excluded peril under the policy of insurance. Finally, it alleged that it was only liable to pay the insured if the insured has "become liable to pay and shall pay by way of damages to any other person any sum...". As the insured had not actually paid any sum it argued that its liability was not invoked. The Court considered each argument in turn and held: first, that the implied warranty of illegality did not apply to the third party liability portions of the policy; second, that there was no "wilful misconduct"; third, that on a proper reading of the policy the exclusion of "drunken or impaired operation of the vessel or other wrongful act" did not apply to the third party liability clause of the policy as that clause contained its own separately enumerated exclusions; and, finally, that the policy was, in fact, a pay to be paid policy and that the Defendant was, accordingly, not liable.

Elkhorn Developments Ltd. v Sovereign General Insurance Co. et al.,

[2000] B.C.J. No. 834, (2000) 18 C.C.L.I. (3d) 203 (B.C.S.C.)

This was an application by the Defendants for summary dismissal of the Plaintiff’s claim for coverage under a hull and machinery policy. The policy contained two warranties; that the Plaintiff’s barge would be laid up permanently at Pearce Bay and that any movements of the barge would be subject to underwriters’ prior approval. In breach of these warranties, the barge was moved without any notice to underwriters and sank four days after the move had been completed. A marine surveyor was appointed but he was unable to come to a firm opinion on the cause of the sinking. The central issue in the case was whether the warranties were true promissory warranties or merely suspensive conditions. The Court reviewed the case law on warranties and noted that in order for a warranty to constitute a promissory warranty there was a need to demonstrate a substantial relationship between the warranty and the loss incurred. The Court found that although the evidence clearly established the underwriters were concerned about the possibility of a loss occurring during the course of a move of the barge, it was not clear whether there was concern about a loss after a move had occurred. The Court also noted that the Plaintiff wished to obtain further evidence concerning the cause of the sinking of the barge. The Court therefore dismissed the application and ordered that the matter proceed to trial.

Liability of Agents and Brokers - Material Facts - Onus of Proof

1013799 Ontario Ltd. v Kent Line International Ltd.,

[2000] O.J. No. 3074, (2000) 22 C.C.L.I. (3d) 312 (Ont. S.C.)

This was an action against a freight forwarder and insurance broker for breach of contract and negligence arising out of damage to a cargo of chocolate bars shipped to Trinidad. The cargo was insured subject to the Institute Frozen Food Clauses which only provided coverage in the event of mechanical breakdown of the reefer units for a period longer than 24 hours and such coverage ceased 5 days after discharge from the ship. The Plaintiff was unable to meet these conditions and, hence, there was no insurance coverage. The claim against the freight forwarder and insurance broker for breach of contract was based on an alleged contractual agreement that the Defendants were to procure "all risks, warehouse to warehouse" insurance coverage for the shipment. The Court found, however, that although the Plaintiff had initially requested "all risks, warehouse to warehouse" coverage it later instructed the freight forwarder to procure coverage subject to the Institute Frozen Food Clauses. Accordingly, the Court found that there was no breach of contract.

The Court next considered the question of negligence. The Court reviewed the authorities on the duties owed by insurance agents and brokers to their customers. These authorities established that the duty included: to review the needs of the customer; to provide information about available coverage and advice about which forms of coverage are appropriate; to exercise reasonable skill and care to obtain policies in the terms bargained for and to service those policies as required; to advise the customer if they are unable to obtain the policies bargained for; and to point out gaps in the coverage and advise the customer how to protect against those gaps. The Court held that although the Plaintiff had been advised of the limiting conditions of the Institute Frozen Food Clauses, the Defendants had a duty to do more. Specifically, the Court found that extended coverage was available and that the Defendants should have advised the Plaintiff of this coverage. The Court rejected the Defendants’ argument that the Plaintiff had not proven that it would have been granted the extended coverage if it had so requested. The Court held that there was no onus on the Plaintiff to prove this.

An additional argument advanced by the Defendants was that there had been material non-disclosure on the part of the Plaintiff. The Court rejected this argument saying that even if there had been material non-disclosure the effect would be to make the contract of insurance voidable and not void ab initio. As the underwriter never exercised the right to void the policy the Defendants could not rely upon the voidability of the policy as proof that the Plaintiff suffered no loss. Further, the Court held that there was insufficient evidence that the facts not disclosed were material. The Court noted that the onus was on the Defendants to lead evidence from the underwriter that it, in fact, regarded the non-disclosure as material and also to lead expert evidence of an independent underwriter that a prudent underwriter would be of the same view.

In the result, the Defendants were liable for failing to obtain the proper insurance coverage.

Rainbow Technicoloured Wood Veneer Ltd. v The "Canmar Conquest" et al.,

(June 28, 2000) No. T-2580-97 (F.C.T.D.), [2000] F.C.J. No. 1032

This was an action by the Plaintiff against its cargo insurer for damage to a guillotine press in an amount in excess of $100,000.00. The Defendant insurer argued that coverage was excluded by clause 4.3 of the Institute Cargo Clauses (A) in that the press was insufficiently packed and prepared for shipment. The Court reviewed the evidence of the surveyors, all of whom gave the opinion that the securing of the press in the container was inadequate, and dismissed the action.

Laing v Boreal Pacific,

(October 13, 2000) No. A-166-99 (F.C.A.), [2000] F.C.J. No. 1665

This was an appeal from a judgment of the Trial Division dismissing a claim under a marine insurance policy for the loss of an excavator. The excavator was loaded on the self-propelled barge, "Palaquin", and was being carried across the Strait of Georgia. During the crossing the seas became rough and the excavator shifted and ultimately fell overboard. The Plaintiff settled an action brought by the owner of the excavator and brought proceedings for indemnity pursuant to the terms of his insurance policy. The Defendant insurer denied the claim on the basis that the vessel was unseaworthy at the commencement of the journey. The Trial Judge found that the barge was unseaworthy in that it was too heavily laden for the sea conditions that could reasonably be expected and the excavator was not properly secured. She further found that the Plaintiff had knowledge of the facts that made the vessel unseaworthy. In result, the Plaintiff's action was dismissed. On appeal, the Court of Appeal held that the Trial Judge correctly applied the test of privity, ie. whether the shipowner had knowledge of the facts constituting the unseaworthiness and knowledge that those facts rendered the ship unseaworthy or turned a blind eye to the facts giving rise to the unseaworthiness. In the result, the appeal was dismissed.

Bevan v Gartside Marine Engines Ltd. et al.,

[2000] B.C.J. No. 528 (B.C. Prov. Ct.)

This was an action against a repairer and an insurer under an all risks policy for damage caused when a transmission overheated. The Plaintiff alleged that the repairer had been negligent in performing prior repairs to the trolling valve control linkage. The Plaintiff further alleged that the damage was covered by his all risks policy. The repairer denied negligence and the insurer defended on the basis of an exclusion in the policy excluding liability for damage caused by wear and tear and mechanical breakdown. The Court found that there could have been multiple causes of the transmission failure including pre-existing damage, wear and tear and improper use of the trolling gear by the Plaintiff or previous owners. As a result, the Court held that negligence on the part of the repairer had not been proven. With respect to the claim against the insurer, the Court noted that there are limits to the coverage afforded by an all risks policy and that the Plaintiff was required to prove that the cause of the transmission failure "was due to a casualty". The Court held that the Plaintiff had not proven that the loss was due to a casualty and coverage was denied.

II. Carriage of Goods

Kanematsu GMBH v Acadia Shipbrokers Limited et al.,

(2000) 259 N.R. 201 (F.C.A.)

This was an appeal from a motion in which the Plaintiff was granted summary judgment against the Defendant charterers for having induced the ship owner to deliver up the cargo to a third party without proper presentation of the bill of lading. The Defendants argued that the case was not appropriate for summary judgment as the facts were too complex. The motions judge, however, held that the fundamental issue was whether the cargo had been delivered without the surrender of the original bill of lading. As this was admitted, summary judgment was granted. On appeal, the Federal Court of Appeal set aside the order for summary judgment. The Court of Appeal held that the Defendants were not the ship owner and therefore were not prima facie liable for delivery of the cargo without proper presentation of the bill of lading. The case against the Defendants was for inducing breach of contract by the shipowner. This required proof that: (1) the Defendants knew there was a contract; (2) they induced its breach; and, (3) damages were suffered as a consequence. The Court of Appeal held that there was a real doubt whether the Defendants had knowledge of a contract between the Plaintiff, as holder of the bill of lading, and the shipowner. Further, the Court of Appeal thought there was doubt about whether the Defendants intended to induce a breach of the contract. These were serious factual issues which required a trial on the merits.

Canadian Forest Products Inc. v Termar Navigation Co. Inc.,

(March 15, 2000) No. A-934-97 (F.C.A.), [2000] F.C.J. No. 450

This was an appeal from a judgment of the Trial Division reported at [1998] 2 F.C. 328. The claim was by the carrier to recover the costs of discharging and re-stowing the Plaintiff's cargo after it shifted when the vessel encountered a large wave in rough seas. The Trial Judge held that the Plaintiff was not obliged to pay the discharge and re-stowing costs either under the terms of the bill of lading or on the basis of bailment, agency of necessity, quantum meruit or unjust enrichment. On appeal, the Court of Appeal merely indicated that they were in substantial agreement with the reasons of the Trial Judge and dismissed the appeal.

Porto Seguro Companhia De Seguros Gerais v The "Federal Danube" et al.,

(January 31, 2001) No. T-2057-85 (F.C.T.D.), [2001] F.C.J. No. 152

This was the re-trial of an action that had been previously dismissed by the Federal Court Trial Division in a judgment reported at [1995] 82 F.T.R. 127. That judgment was ultimately overturned by the Supreme Court of Canada and a new trial ordered on the grounds that the Trial Judge erred in refusing to hear three expert witnesses because assessors had been appointed by the court (see [1997] 3 S.C.R. 1278).

The Plaintiff was the cargo underwriter who had indemnified the cargo owners for damages suffered as a result of a collision in the St. Lawrence Seaway between the "Beograd" and the "Federal Danube". The Plaintiff argued that the "Federal Danube" was wholly at fault for the collision and liable for the damage to the cargo in the principal amount of $4.4 million. There were two issues in the case; the standing of the Plaintiff to bring the action in its own name and the liability for the collision. On the first issue, the Defendant argued that under Canadian maritime law the Plaintiff ought to have commenced the action in the name of the cargo owners. The Court, however, held that the matter was governed either by the law of Brazil (where the insurance contract was made) or the law of Quebec and that in either case the insurers became subrogated to the rights of their insured upon payment and were entitled to bring the action in their own name. With respect to the second issue, the liability for the collision, the Court held that the "Beograd" was wholly at fault for the collision. The faults found against the "Beograd" included: navigating through the anchorage area rather than in the navigation channel; navigating at an unsafe speed; and, failing to keep out of the way of an anchored vessel. In reaching the conclusion that the "Beograd" was wholly at fault the Court noted that where a vessel underway strikes a vessel at anchor the underway vessel is prima facie at fault unless it is proven the accident could not have been avoided by the exercise of ordinary skill. In the result, the Plaintiff’s action was dismissed.

Nuvo Electronics Inc. v London Assurance et al.,

(2000) 49 O.R. (3d) 374 (Ont. S.C.)

This matter arose out of the loss of 15 cartons of integrated circuits valued at US$1,403,000 and carried by air from San Francisco to Toronto. The shipment left San Franciso on August 10, 1996, and arrived at Toronto on the morning of August 11, 1996. It was then placed in the Air Canada cargo warehouse but was never seen again. The Plaintiff consignee commenced this action for the value of the lost cargo against its cargo underwriter and the air carrier. (That part of the judgment dealing with the claim against the underwriter is considered above under "Insurance".) The air carrier defended the action arguing that the Plaintiff had not proven the value or the contents of the cargo, that it had delivered the goods to a courier for delivery to the Plaintiff and that it was, in any event, entitled to limit its liability pursuant to the Warsaw Convention. The only evidence adduced at trial as to the value and content of the shipment was the air waybill, the packing list and the commercial invoice. The carrier objected to the admission of these documents on the basis that they were hearsay and not properly admissible. The Court, however, held that these documents were business records within the meaning of the Canada Evidence Act and were admissible to prove both the content and value of the shipment. The carrier’s second argument, that it had delivered the cargo to a courier, was also rejected by the Court. The Court found as a fact that although the courier driver had signed for the cargo he did not in fact receive the cargo as it could not be located by the air carrier. The Court next considered whether the air carrier could limit its liability under the

Warsaw Convention and held that it could not. There were two reasons advanced by the Court for this decision. First, the Court found that the air waybill was not in conformity with Article 8 of the Convention in that it did not contain the name of the airport departure, the name of the first carrier, whether the weight was in pounds or kilograms and the nature and quantity of the goods. Relying upon American case law, the Court held that if an air carrier fails to include the particulars required by Article 8 of the Convention in the air waybill then, pursuant to Article 9, the carrier is not entitled to limit liability. Second, the Court held that the Plaintiff had proven that it was more probable than not that the cargo was stolen by an employee of the carrier or with the complicity of an employee of the carrier and that there was an irresistible inference that such employee was in the course and scope of his employment when the theft occurred. Accordingly, the Court held that there was "wilful misconduct" and that the carrier was not entitled to limit its liability.

World of Art Inc. v Koninklijke Luchtraart Maatschappij N.V.,

[2000] O.J. No. 2364 (Ont. S.C.) affirmed [2000] O.J. No.4567 (Ont. C.A.)

This was an application for summary judgment for the loss of cargo to be carried by air from Iran. The loss apparently occurred because the goods were rerouted through the United States where they were seized by U.S. Customs. The Defendant air carrier was aware of this possibility as a similar incident had occurred previously. As a result, its systems were set up so that a warning would appear automatically on its computer system warning its employees not to route or reroute goods emanating from Iran through the United States. This warning would only appear, however, if the place of origin was accurately stated as being Iran. In this instance that did not occur. The goods were stated as originating in Amsterdam and were rerouted through the United States. This error was noticed by an employee of the Defendant who sent a message to his counterpart in Amsterdam but that message was not acted upon. The Court held that these facts created a strong prima facie case that there had been acts or omissions on the part of the Defendant "done with intent to cause damage or recklessly and with knowledge that damage would probably result". The Defendant filed an affidavit on the application as to the systems of the Defendant but that affidavit did not explain how the various errors that led to the rerouting had occurred. The Court drew an adverse inference from the failure of the Defendant to explain how the errors occurred. In the result, the Defendant was not entitled to limit its liability.

Alberta Garment Manufacturing Co. v Purolator Courier Ltd.,

[2000] A.J. No. 317 (Alta. Prov. Ct.)

The Plaintiff had delivered goods to the Defendant for carriage. On the face of the bill of lading the Plaintiff inserted a clause requiring the Defendant to obtain a certified cheque before effecting delivery. The Defendant did not do so and the Plaintiff was never paid for the goods. The Defendant relied upon a term in the bill of lading that limited its liability for failure to obtain a cheque to the freight charges. The Plaintiff argued that the Defendant was not entitled to limit its liability as the bill of lading was not signed by the Defendant as required by the Alberta regulations governing bills of lading. The Court held that under the applicable Alberta legislation if no bill of lading is issued or if the bill of lading does not comply with the regulations the Defendant is only entitled to rely upon the statutory limitation of $2 per pound. However, as that limitation applies only to loss of or damage to the goods it was of no assistance to the Defendant. In the result, the Defendant was not entitled to limit its liability. (Note: It is debatable whether a carrier who fails to issue a bill of lading or who issues a bill of lading not in compliance with the regulations may nonetheless rely upon the statutory limitation of $2 per pound. See, for example, Arnold Bros. Transport Ltd. v Western Greenhouse Growers Cooperative, (1992), 69 BCLR (2d) 108 and Corcoran v Ehrlick Transport, (1984), 46 OR (2d) 225, which are to the contrary.)

Boutchev v D.H.L. International Ltd.,

[2000] A.J. No. 1 (Alta. Prov. Ct.)

The issue in this small claims matter was whether the Defendant courier could rely upon terms in its waybill limiting its liability. The Court found that the terms on the waybill had not been properly brought to the attention of the Plaintiff and that the totality of the terms and conditions were "neither plain nor unambiguous" and were "quite simply legal gobbledygook". In result, the Plaintiff was awarded judgment.

Pantainer Ltd. v 996660 Ontario Ltd.,

(March 17, 2000) No. T-231-99 (F.C.T.D.), [2000] F.C.J. No. 334

This was a claim for freight charges owing. The Defendant alleged that it was entitled to a set-off for damage caused to cargo carried by the Defendant. The Court held the general rule was that freight is to be paid without deduction and that the Defendant accordingly had no right of set-off.

Bill S-2, The Marine Liability Act (formerly Bill S-17) which died on the order paper when the Federal election was called last year) was passed by the Senate on January 31, 2001 and is currently before the House of Commons. Section 46 of the bill provides that, if a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may bring proceedings in Canada where:

(a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada;

(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or

(c) the contract was made in Canada.

Once enacted, this provision will allow cargo claimants to commence proceedings in Canada notwithstanding the existence of a jurisdiction or arbitration clause in the bill of lading provided one of the above three conditions are met. Hence, the many stay applications based on jurisdiction and arbitration clauses will become a thing of the past.

Fibreco Pulp Inc. et al v Star Shipping A/S et al.,

(2000) 257 N.R. 291 (F.C.A.)

This was an appeal from the order of a Motions Judge upholding the decision of a Prothonotary in which the Prothonotary ordered that the action be stayed not only against parties to an arbitration agreement but also against Defendants not parties to the agreement. The case involved two shipments of pulp from Squamish, British Columbia to Finland via Rotterdam. The Plaintiffs were the vendor of the pulp, the buyer of the pulp for resale, and the ultimate buyer/consignee of the pulp. The Defendants were the Squamish terminal, the charterers, Star Shipping A/S, and the owners of the various ships that carried the pulp. The buyer of the pulp and Star Shipping had entered into a contract of affreightment that contained an arbitration agreement in favour of London arbitration. The Prothonotary held that pursuant to the Commercial Arbitration Act he

had no alternative but to grant a stay of proceedings against Star Shipping. The Prothonotary noted that the more interesting question was whether the action ought to be stayed against the other Defendants who were not parties to the agreement. The Prothonotary referred to Nanisivik Mines Ltd. v Canarctic Shipping Co. Ltd., (1994), 113 D.L.R. (4th) 536, where the Federal Court of Appeal ordered a stay against persons not parties to an arbitration agreement on the grounds that "disposing of the issues between the two parties to the arbitration agreement might, more likely than not, resolve the entire litigation". In reliance on this decision, the Prothonotary noted that London arbitration "may well resolve the whole claim" and consequently ordered that the entire action be stayed.

A secondary issue in this case was whether the in rem action against one of the Defendant ships ought to be set aside and the security given by the shipowner returned. The grounds were that there had been a change in the beneficial ownership of the ship after the voyage in question but before the action was commenced. (For certain specified claims, including cargo claims, section 43(3) of the Federal Court Act requires that the ship's beneficial ownership be the same at the time of commencement of the action as it was when the cause of action arose.) The Prothonotary granted the motion and ordered that the In Rem proceeding be struck and that the security be returned.

On appeal, the Motions Judge noted that the Prothonotary's reasons were detailed and sound and the appeal was dismissed. On further appeal, the Federal Court of Appeal noted that there were multiple competing jurisdictions none of which were ideal. Nevertheless, the Court of Appeal found no error on the part of the Prothonotary and dismissed the appeal. In the result, the action was stayed.

Hyundai Merchant Marine Co. Ltd. v Anraj Fish Products Industries Ltd. et al.,

(June 20, 2000) No. A-836-99 (F.C.A.), [2000] F.C.J. No. 944

This was an appeal from an order of a Motions Judge in which the Motions Judge overturned the order of a Prothonotary staying the action on the grounds of a jurisdiction clause in the bill of lading selecting Korea as the appropriate jurisdiction. The Federal Court of Appeal stated that the standard of review on an appeal of this sort, whether from a decision of a Motions Judge or a Prothonotary, is that the court of appeal must uphold the order unless it was arrived at on a wrong basis or was plainly wrong. The Court of Appeal noted that the court should not microscopically examine the reasons of the Motions Judge or Prothonotary in applying this test and held that the Motions Judge had erred in overturning the decision of the Prothonotary. The Court of Appeal further re-stated that prima facie an application to stay proceedings based on a jurisdiction or arbitration clause must succeed unless "strong reasons" are shown that it would not be reasonable or just to enforce the clause. The Court examined the factors set out in The Eleftheria, [1969] 1 Lloyd’s Rep.237, (i.e. the country in which the issues of fact are situated, the applicable law, the country with which the parties are most closely connected, whether the defendant genuinely desires trial in a foreign country and the prejudice to the plaintiff of litigating in a foreign country) and concluded that there were not strong reasons to decline to enforce the jurisdiction clause. In the result, the action was stayed.

Stay of Proceedings - Jurisdiction Clause - Proper Test - Deviation

Ecu-line N.V. v Z.I. Pompey Industrie,

(January 25, 2001) No. A-29-00 (F.C.A.), [2000] F.C.J. No. 96

This was an appeal from a decision of a Motions Judge upholding the decision of a Prothonotary denying the Defendant's application for a stay of proceedings based on a jurisdiction clause in the bill of lading. At first instance, the Prothonotary considered the usual factors that are weighed on a stay application and determined that the balance of convenience was marginally in favour of granting the stay. However, the Prothonotary held that there had been an unreasonable deviation in that the bill of lading called for the cargo to be shipped from Antwerp and discharged at Seattle whereas the cargo was, in fact, discharged at Montreal and carried by rail to Vancouver. Accordingly, the Prothonotary held that the Defendant was not entitled to rely upon the jurisdiction clause in the bill of lading. On appeal, the Motions Judge held that the Prothonotary had taken into account all of the circumstances of the case and did not err by taking into the account the breach of contract by the Defendant. On further appeal the Court of Appeal upheld the decisions of the Prothonotary and the Motions Judge, however, and most importantly, the Court of Appeal held that the proper test to apply in stay applications is the tripartite test employed in applications for interlocutory injunctions. That test requires the court to consider; first, is there a serious issue to be tried; second, whether the party seeking the injunction (or stay) would suffer irreparable harm if the injunction (or stay) was not granted; and third, which party would suffer the greater harm as a result of the granting or refusal of the injunction (or stay). (Editors Note: This is arguably a much more difficult test for a defendant seeking a stay to meet than is the test set out in The Eleftheria, [1969] 1 Lloyd’s Rep. 237, which has until now been the test applied to such matters.)

Stay - Jurisdiction Clause- "Merchant" - Who is Bound

Encan Liquidation v Transintra Canada,

(November 29, 2000) No. T-1183-00 (F.C.T.D.), [2000] F.C.J. No. 1971

This was an application by the Defendant carrier to stay a Third Party claim brought against it by a co-Defendant, the freight forwarder of the Plaintiff cargo owner, on the basis of a jurisdiction clause in the bill of lading. The Court noted that the bill of lading was a contract between the carrier and the "Merchant" as defined. The term "Merchant" was defined as including the shipper, holder, consignee, receiver of the goods ... and anyone acting on behalf of any such person". On this definition, the Court held the freight forwarder was a "Merchant" and was bound by the terms of the bill of lading, including the jurisdiction clause. In the result, the Court ordered the proceedings stayed.

Texserv Inc. v Incon Container USA Ltd. et al.,

(2000) 48 O.R. (3d) 427 (Ont. S.C.)

This was an application by the Defendant carrier to stay proceedings on the basis of a jurisdiction clause in the bill of lading requiring actions to be commenced in Florida. The Court declined the stay on the basis that the contract of carriage was effected before the bill of lading was issued, the Plaintiff was not aware of the jurisdiction clause until it received delivery of the goods, and there was virtually nothing to connect the proceedings with Florida except that the cargo was transhipped there.

IV. Canadian Maritime Law/ Federal Court Jurisdiction

Ruby Trading S.A. v Parsons et al.,

(November 21, 2000) No. A-90-00 (F.C.A.), [2000] F.C.J. No. 1893

This matter concerned the jurisdiction of the Federal Court to entertain an action by a foreign ship owner against foreign crew members for breach of contract of employment and against a Canadian union for inducing breach of contract. While the "Japan Rainbow II" was loading a cargo of grain wage demands were made by the Defendants which were not satisfied by the Plaintiff. A strike sign was posted on the ship which resulted in the cessation of the loading activities. The Plaintiff then commenced this proceeding and obtained an injunction restraining the picketing for 14 days. The order granting the injunction was appealed but as the loading was completed during the time the injunction was in effect the issue of the appropriateness of the injunction was moot and the Court of Appeal declined to hear argument on this point. The Court of Appeal did, however, agree to adjudicate the issue of whether the Federal Court had jurisdiction to hear the claim of the Plaintiff. The Defendant argued that it did not have jurisdiction as the claims were in personaum and not in rem, did not fall within the maritime jurisdiction of the court and jurisdiction was specifically assigned by the Canada Labour Code to the Canada Industrial Relations Board. The Plaintiff argued that the claims fell within the court’s admiralty jurisdiction.

The Court of Appeal reviewed the authorities and reiterated that the test for jurisdiction was threefold: (1) there must be a statutory grant of jurisdiction by Parliament; (2) there must be an existing body of federal law essential to the disposition of the case that nourishes the grant of jurisdiction; and (3) the law on which the case is based must be a "law of Canada" as that phrase is used in s. 101 of the Constitution Act. The Court of Appeal held that all three branches of this test had been met. The statutory grant of jurisdiction was found in s. 22 of the Federal Court Act and the nourishing law and the "law of Canada" was found in Canadian maritime law. The Court of Appeal held that the claims advanced were integrally connected with maritime matters as to be legitimate Canadian maritime law. The Court of Appeal expressly held that it did not matter that the claims were in personam and not in rem as the court had jurisdiction in either event. The Court of Appeal further held that the Canada Labour Code had no application as it did not govern relations between a foreign ship owner and a foreign crew. In the result, it was held that the Federal Court had jurisdiction.

Jurisdiction - Breach of Agreement of Sale

John E. Canning Ltd. v Tripap Inc.,

(April 5, 2000) No. T-477-98 (F.C.T.D.), [2000] F.C.J. No. 418

This was an application to dismiss the Plaintiff’s claim on the grounds that it was not a maritime matter and the Federal Court lacked jurisdiction. The claim arose from an agreement between the Plaintiff and Defendant pursuant to which the Plaintiff had agreed to sell and deliver by barge wood to the Defendant. The Defendant later purported to terminate the agreement on the grounds that the Plaintiff had failed to perform its obligations. The Plaintiff then brought this action alleging that the Defendant breached the agreement without cause and sought damages including expenses covering the barge. The Court held that, although the agreement between the parties included some undertakings involving maritime matters, the sole claim advanced of unlawful termination of a purchase and sale agreement had nothing to do with the marine aspects of the agreement. In the result, the Court held that it was without jurisdiction and dismissed the claim.

Pantainer Ltd. v 996660 Ontario Ltd.,

(March 17, 2000) No. T-231-99 (F.C.T.D.), [2000] F.C.J. No. 334

One of the issues in this case was whether the Defendant’s counterclaim against the Plaintiff for damage caused to cargo in a warehouse after the carriage by sea was within the jurisdiction of the Federal Court as coming under maritime law. The Court held that claims for warehousing and storage that arose out of contracts of the carriage of goods by sea are within the jurisdiction of the Court.

Porto Seguro Companhia De Seguros Gerais v The "Federal Danube" et al.,

(January 31, 2001) No. T-2057-85 (F.C.T.D.), [2001] F.C.J. No. 152

This case is summarized above under "Carriage of Goods". One issue in this case was whether the Plaintiff cargo underwriters had standing to bring suit in their own name for damage caused to the cargo they insured and for which they indemnified the cargo owners. The Defendant argued that under Canadian maritime law the Plaintiff ought to have commenced the action in the name of the cargo owners. The Court, however, held that the matter was governed either by the law of Brazil (where the insurance contract was made) or the law of Quebec and that in either case the insurers became subrogated to the rights of their insured upon payment and were entitled to bring the action in their own name.

R v Jail Island Aquaculture Ltd.,

[2000] N.B.J. No. 338 (N.B.Q.B.)

In this matter the accused had been charged with various offences under the Occupational Health and Safety Act of New Brunswick. The charges arose out of a fatal accident that occurred on board the accused’s barge while smolt salmon were being unloaded into a salmon cage. The accused argued that as the accident occurred on a ship it fell within exclusive federal jurisdiction with respect to maritime law and, in particular, navigation and shipping. At first instance, the Provincial Court Judge dismissed the motion holding that the case was not about shipping but was about aquaculture, a matter coming within provincial jurisdiction under property and civil rights. The accused then brought an application for judicial review to the Court of Queen’s Bench. The Court of Queen’s Bench did not deal with the substantive issues raised in the application as it was of the view that the application was in pith and substance an appeal from the order of the Provincial Court Judge and held that there was no right to appeal such an interlocutory decision.

R v Williams,

(March 13, 2000) No. CC990702 (B.C.S.C.)

In this matter the accused was charged with selling liquor on board his vessel without a liquor licence in contravention of the Liquor Control and Licencing Act of British Columbia. The defences argued were that the Liquor Control and Licencing Act was ultra vires the province insofar as it attempted to regulate vessels, a matter coming under Federal maritime law, and that the vessel was operating outside the territorial jurisdiction of the province. The Court determined that the proper test to apply was whether the provinical legislation affected a vital part of the federal undertaking or whether it impaired or sterilised a federal undertaking. If it did either, it was ultra vires. The Court found, however, that the sale of liquor on a vessel was not a vital part of a ship's operations. The Court held, therefore, that the Liquor Control and Licencing Act did not encroach upon federal jurisdiction over navigation and shipping and did not impair a federal undertaking. The Court further held that the vessel was, at the material times, operating in and around the Greater Vancouver area which was within the territorial jurisdiction of the province of British Columbia.

Nicholson v Canada,

[2000] 3 F.C. 225 (F.C.T.D.)

This was a summary judgment motion by the Crown for an order dismissing the claims of the Plaintiffs as time barred. The Plaintiffs were the dependents and the executor of the deceased who died when his vessel hit a rock and sank. The Plaintiffs alleged that the accident was caused by the breach of statutory duties on the part of the Coast Guard. The accident occurred on April 2, 1992, but the action was not commenced until March 30, 1994. The Defendant argued that the applicable limitation period was one year from the time of death as then prescribed by s. 649 of the Canada Shipping Act. The Plaintiffs argued that the discoverability principle operated to extend the time bar under the circumstances of the case, that the Court had inherent jurisdiction to extend the limitation period, that there was a non-statutory cause of action to which s. 649 did not apply, that the tolling provision of the Ontario Limitations Act applied, and that, in any event, the claim of the estate was not covered by s. 649. The Court dealt with each of these arguments. With respect to the discoverability principle (i.e. that the limitation does not run until the Plaintiff is aware of the material facts giving rise to a cause of action) the Court held that this principle applied but that it did not assist the Plaintiffs as they were aware of the material facts at the conclusion of the inquest into the death of the deceased yet they did not commence their action within one year from that date. With respect to the inherent jurisdiction of the court to extend the limitation period, the Court held that, in the absence of a clear statutory authority it had no such jurisdiction. (Note: This is contrary to the decision of the Ontario Court of Appeal in Dreifelds v Burton, (March 6, 1998) No. C 2456 & C24580 (Ont. C.A.) but is consistent with the decision of the British Columbia Supreme Court in Vogel v Sawbridge, (April 3, 1996) No. 24638 Kelowna Registry.) With respect to the alleged common law non-statutory cause of action, the Court held that there was no such cause of action. With respect to the argument that the tolling provisions of the Ontario Limitation Act applied, the Court held that the incorporation of the tolling provisions would be inconsistent with the statutory scheme set out in Part XIV of the Canada Shipping Act. Finally, with respect to the action by the executor of the estate of the deceased, the Court held that this action (which was newly created by the Supreme Court of Canada in Ordon Estate v Grail, [1998] 3 S.C.R. 437) was not time barred as it was not a claim by dependents and was governed by the two year limitation period in the Ontario Trustee Act as incorporated by section 39 of the Federal Court Act. (Note: It is not apparent why the limitation period in the Ontario Trustee Act would apply to the action by the executor as that action is a common law action and is not based on the Trustee Act.)

Federal Court Jurisdiction - Breach of Fishing Agreement

Inter Atlantic Canada Ltd. v The "Rio Cuyaguateje",

(2000)180 F.T.R. 318 (F.C.T.D.)

This was an application to strike out the Statement of Claim and set aside the Warrant of Arrest on the grounds that the Federal Court lacked jurisdiction. The subject matter of the action was an alleged breach of an agreement relating to the utilization and allocation of North Atlantic shrimp to Cuba. The Court held that this was not a claim involving Canadian maritime law and, therefore, held that it was without jurisdiction and allowed the motion.

V. Limitation of Liability

Canadian Pacific Railway Company v The "Sheena M" et al.,

(November 28, 2000) No. T-1692-99 (F.C.T.D.), [2000] F.C.J. No. 1953

This action arose out of the collision between the unmanned barge, "Rivtow 901", in tow of the "Sheena M", and the Mission Railway Bridge. The Plaintiffs, the owners of the "Sheena M", brought this application for summary judgment for an order that they were entitled to limit their liability under s. 577(1)(b) of the Canada Shipping Act to $500,000.00 plus interest. The Defendant, the owner of the bridge, admitted that the collision was not caused by a "personal act or omission" or "with intent to cause such loss" or "recklessly with knowledge that such loss would probably result" and, therefore, the right of the Plaintiffs to limit liability was not in dispute. The sole issue was whether the limitation fund should be calculated on the tonnage of the tug, "Sheena M", alone or whether it should be calculated on the combined tonnage of the tug and tow. The leading Canadian case on this issue was recognized by all to be the decision of the Supreme Court of Canada in The "Rhone" v The "A.B. Widener", [1993] 1 S.C.R. 497, in which the Supreme Court affirmed that the limitation fund should be calculated on the combined tonnage of the tug and tow provided the tug and tow were in common ownership (the "flotilla principle"). In the absence of common ownership and where the barge was a "dumb barge", the fund was to be calculated on the basis of the tonnage of the tug alone. However, the limitation of liability regime in effect at the time of the decision in The "Rhone" was essentially that contained in the 1957 Convention on Limitation of Liability for Marine Claims. That regime was repealed by C.6 Statutes of Canada 1998, which implemented the 1976 Convention on Limitation of Liability for Marine Claims, with some modifications. Counsel for the Defendant argued that these changes to Canada’s limitation of liability regime had overtaken the decision of the Supreme Court of Canada in The "Rhone" and that the new regime should be interpreted as requiring the tonnage for limitation purposes to be calculated on the basis of the combined tonnage. Counsel for the Defendant pointed specifically to the new definition of "shipowner" in s. 576(3) of the Canada Shipping Act which includes "any person having an interest in or possession of a ship" and urged that by virtue of this definition the owners of the "Sheena M" were also owners of the "Rivtow 901". The Court, however, held that the new definition of "shipowner" was merely a substitution for former s. 577 of the Canada Shipping Act which had similarly extended the limitation of liability provisions to, inter alia, "any person having an interest in or possession of a ship". The Court therefore concluded that the legislation before it was essentially the same as was before the Supreme Court of Canada in The "Rhone". Counsel for the Defendant next argued that the "flotilla principle" was no longer valid because the new limitation of liability regime did away with concepts of "causative negligence" and "common ownership" . The Court also rejected this argument saying that the 1998 amendments showed no clear intent on the part of Parliament to change the existing Canadian "flotilla principle". In the result, the limitation fund was calculated on the basis of the tonnage of the tug alone.

Collisions - Limitation - Damage to Fishing Net

North Ridge Fishing Ltd. et al. v The "Prosperity" et al.,

(2000) 78 B.C.L.R. (3d) 388 (B.C.S.C.)

This was an action for damages suffered during the 1997 herring fishery when the Defendant's vessel cut the net of the Plaintiffs' vessel. (The full case is summarized below under Miscellaneous.) One of the issues was limitation of liability. The Court noted that there were two prior decisions that had allowed limitation of liability under similar circumstances and stated that it would have followed those decisions and allowed limitation, if necessary. It is noteworthy, however, that in the absence of precedent the Court indicated that it would not have allowed the Defendants to limit liability. The Court indicated that the decision of an owner to engage in a shotgun herring opening, a venture that "compels masters to sacrifice good seamanship for profit", would be sufficient by itself to disentitle the owner to limitation. (Note: This case was decided under the old limitation of liability regime which is no longer in effect.)

Capilano Fishing Ltd. v The "Qualicum Producer",

(January 17, 2000) Van. Reg. No. C072709 (B.C.S.C.), [2000] B.C.J. No. 72

This was an action for damages suffered during the 1997 herring fishery when the Defendant's vessel cut the net of the Plaintiffs' vessel. The Plaintiffs claimed damages for the net, for the value of the lost catch and for the costs of fishing licences thrown away. The Defendants denied negligence and claimed the right to limit liability. On the issue of liability the Court found that the Master of the Defendant vessel was negligent in that he was aware of the Plaintiffs’ vessel yet manoeuvred his vessel in a direction that ultimately led to the collision. With respect to damages, the Court held that the damages should be calculated in accordance with the method established in Wishing Star Fishing Co. v The "B.C. Baron", [1987] F.C.J. No. 161, being the total catch divided by the number of vessels less the fish actually caught. The Court denied the Plaintiffs’ claim based on unjust enrichment holding that such a claim was not available on the facts of the case. On the matter of limitation, the Court found that the Defendant vessel was well equipped and had a competent Master and crew and, therefore, held that the Defendants were entitled to limit their liability to the amount of approximately $40,000.00. (Note: This case was decided under the old limitation of liability regime. Under the new regime the limitation amount is substantially higher ($500,000.00 for vessels under 300 tons) and the owner is entitled to limit unless the claimant establishes a personal act or omission committed with intent to cause loss, or recklessly, with the knowledge that loss would probably result.)

Limitation Proceedings - Pleadings

Bayside Towing Ltd. v Canadian Pacific Railway Company,

[2000] 3 F.C. 127 (F.C.T.D.)

This was a limitation action by the owner of the tug "Sheena M" in relation to a collision between the barge "Rivtow 101" in tow of the "Sheena M" and a railway bridge owned by the Defendant. The Defendant challenged the right of the Plaintiff to limit liability pursuant to the 1976 Convention. The Plaintiff brought this application to strike out portions of the Statement of Defence. The Court ordered that those portions of the Statement of Defence referring to faults allegedly committed by the owners of the tow be struck on the grounds that they were not relevant to whether the tug owner could limit liability. The Court also struck out those portions of the Statement of Defence alleging mere negligence on the grounds that negligence has nothing to do with the test set out in Article 4 of the Convention for breaking limitation (i.e. personal act or omission committed with intent to cause loss, or recklessly, with the knowledge that loss would probably result). The Court also struck out pleas of res ipsa loquitur, on the grounds that it was no longer applicable in Canada, and breach of statutory duty, on the grounds that it was not a recognized tort and was to be considered in the context of the general law of negligence. The Court refused to strike out allegations of "wilful defaults", noting that concepts of wilfulness may be close to the test under the Convention. The Court further refused to strike out an allegation that the tonnage for limitation purposes should be calculated on the combined tonnage of the tug and tow. The Court doubted that the plea could succeed in the absence of common ownership of the tug and tow but it was not something that plainly and obviously would fail.

Canadian Pacific Railway Company v The "Sheena M" et al.,

[2000] 4 F.C. 159 (F.C.T.D.)

This is another action arising out of the collision between the barge "Rivtow 101" in tow of the "Sheena M" and a railway bridge. As a result of the collision $5 million in damage was caused to the bridge. Two actions were commenced following the collision; one by the owners of the "Sheena M" for limitation (the "limitation action") and the other by the Plaintiff for the damages occasioned by the collision (the "liability action"). This was an application by the owners of the "Sheena M" to stay the liability action pending the outcome of the limitation action and an application by the Plaintiff to consolidate the two actions. The Court refused consolidation on the grounds that the two actions were incompatible for consolidation. The Court noted that there were different issues, a conflicting burden of proof, and different standards of conduct at issue in the two actions. The Court further noted that the limitation action should border on a summary procedure whereas the liability action would be a complex piece of litigation.

The Plaintiff raised two preliminary objections to the jurisdiction of the court to hear the stay application. First, the Plaintiff argued that the court was functus by reason of res judicata. This argument was based on the fact that the court had earlier made an order under s. 581 of the Canada Shipping Act enjoining the Plaintiff and anyone else from commencing or continuing proceedings against the "Sheena M" interests in any court other than the Federal Court. The Court held that it was not functus because enjoining an action and staying an action are two different proceedings and the same question is not decided on the two motions. The second preliminary objection raised by the Plaintiff was that s. 581 of the Canada Shipping Act prevailed over section 50 of the Federal Court Act and s. 581 did not provide for a stay. The Court noted that the wording of s. 581 had changed over time and that earlier versions specifically referred to a stay of proceedings. However, the Court found that the drafters of the present wording of s. 581 had enjoinment in mind and not stay. The Court concluded that there was no conflict or tension between s. 581 of the Canada Shipping Act and section 50 of the Federal Court Act. They dealt with different concepts.

With respect to the merits of the stay application, the Court considered whether the test for granting a stay was to be governed by the two part test of Mon-Oil v Canada, (1989) 27 F.T.R. 50 (i.e. that the continuation of the action would cause prejudice or injustice to the applicant and not mere inconvenience and that a stay would not be unjust to the other side) or the three part test of RJR MacDonald Inc. v Canada, [1994] 1 S.C.R. 311 (i.e. that there was a serious issue to be tried, that the applicant will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours the stay). The Court held that the two part test was the appropriate one where the court is asked to stay its own proceeding whereas the three part test is appropriate for stays of tribunals or stays pending appeal. Applying the two part test, the Court held that it would be prejudicial to the applicants if the stay was not granted since the liability action would be lengthy and complex and would result in the shutting down of the applicant's operations. The Court further held that it would be unjust if the limitation procedure under the 1976 Convention was not allowed to unfold as it should which would result in reduced litigation. The Court further held that there was no prejudice to the Plaintiff in ordering the stay as the limitation proceeding might do away with the need for the liability action and the Plaintiff would have full discovery and full ability to do whatever investigations and hire whatever experts they required.

VI. Admiralty Practice

Paramount Enterprises International Inc. v The "An Xin Jiang" et al.,
(December 15, 2000) No. A-924-97 & A-929-97 (F.C.A.), [2000] F.C.J. No. 2066

The issue on this appeal was whether the claims in rem against the Defendant ship and her cargo should be struck. The underlying action was for breach of contract against one Defendant and for wrongful interference with contractual relations against the other Defendant. The facts were that the Plaintiff had entered into a contract with the one Defendant for the carriage of that Defendant’s cargo on board the vessel "Len Speer". The Plaintiff positioned the "Len Speer" for the carriage but the Defendant did not supply the cargo. Instead the Defendant had the cargo carried on board the "An Xin Jiang". The Plaintiff then commenced this action and arrested the "An Xin Jiang" and the cargo. The issue before the Court was whether this was a proper exercise of the in rem procedure. The Court of Appeal held that in order to support an action in rem the property arrested must be the "subject" of the "cause" of the action. Applying this test to the facts of the case the Court of Appeal held that the actions in rem had to be struck. The "An Xin Jiang" was not the subject of the contract relied upon by the Plaintiff. Further, the Plaintiff never had possession of the cargo and had no lien on the cargo and therefore there was no basis for an in rem action against the cargo.

Middleton v The "Ocean Tribune",

(2000] B.C.J. No. 2271 (B.C.S.C.)

This was a motion to strike out the action in rem. The Plaintiff’s action was to set aside a sale of the Defendant vessel by the mortgagee to a company controlled by the mortgagee at a price that was substantially less than the value of the vessel as appraised at the time the mortgagee took possession. The Plaintiff pleaded that the sale of the vessel was part of a plan to deprive the plaintiff of its equity in its vessel and was null and void. The Defendant argued that the Plaintiff’s claim was primarily a contractual dispute between a borrower and a lender and that the court did not have in rem jurisdiction. The Court held that the claim was properly one in rem and dismissed the Defendant’s motion.

Campbell’s Meat Market Ltd. v The "Merak",

(July 21, 2000) No. T-926-00 (F.C.T.D.), [2000] F.C.J. No. 1224

The issue in this case was whether an arrest of a cargo of shrimp should be set aside on the grounds that the cargo had been sold prior to the service of the Statement of Claim and Warrant of Arrest. The Court reviewed the evidence and found as a fact that the cargo had been sold prior to the arrest and, therefore, set aside the arrest.

Trade Arbed Inc. v Toles Ltd.,

(November 7, 2000) No. T-636-99 (F.C.T.D.), [2000] F.C.J. No. 1934

This was an appeal from an order of a Prothonotary in which the Prothonotary refused to award solicitor-client costs payable by the solicitor personally after the Statement of Claim in rem was ordered struck and an arrest of cargo set aside. On appeal, the Motions Judge held that the seizure of cargo is an extraordinary procedure that constitutes an interference with someone else’s property and agreed that solicitor-client costs were appropriate. The Motions Judge, however, refused to order that the costs be paid personally by the solicitor.

Joy Shipping Inc. v Empressa Cubana Des Fletes of Cuba et al.,

(June 20, 2000) No. T-221-99 (F.C.T.D.), [2000] F.C.J. No. 945

This was an application to set aside a Writ of Seizure and Sale directing the Sheriff to seize the ship "Rio Cuyaguateje". The Writ was issued to enforce a judgment of the Superior Court of England and Wales which had been registered previously with the Federal Court. The Applicant brought this application to set aside the Writ and seizure on the grounds that it was not given notice of the requisition for the Writ and that the judgment debtors were not the owners of the ship. The Court held that there was no requirement that the Applicant be given notice of the requisition for the Writ. The Court further held that it did not have authority to set aside the Writ under Rule 399 as the Writ was not an order of the Court. Finally, the Court held that, pursuant to Rule 448, the issue of ownership should be resolved according to the laws of Newfoundland, where the ship was seized. The Court declined to adjudicate the ownership issue without a full record. In result, the Court refused to set aside the Writ but it did order a stay on condition that the Applicant file security for the entire amount of the judgment.

Third Ocean Marine Navigation LLC v The "GTS Katie",

(October 23, 2000) No. T-1383-00 (F.C.T.D.), [2000] F.C.J. No. 1704

This matter arose out of the much publicized events surrounding the return of Canadian military equipment on board the "GTS Katie" from overseas peacekeeping operations. During the course of that voyage a dispute arose concerning payment of freight and, as a consequence, the "GTS Katie" refused to sail to the delivery port to deliver the military equipment on board. The impasse was resolved when the Canadian military boarded the vessel on the high seas and forced her to sail to port. The owners of the "GTS Katie" commenced this action for payment of freight and obtained a Warrant of Arrest of the freights and sub-freights and served the Warrant on the solicitors acting for the Crown and other Defendants. The Defendants brought the present application to set aside that Warrant of Arrest. The Court set aside the warrant on various grounds. First, the Court held that Crown immunity applied. Secondly, the Court held that although the time charter contained a clause giving the owner a lien on freight and sub-freight the contracts of affreightment contained no such clause. Finally, the Court held that the clause in the bill of lading giving the carrier a lien for any amounts due was a lien on cargo and not on freight.

Shipdock Amsterdam B.V. v Cast Group Inc.,

(2000) 179 F.T.R. 292 (F.C.T.D.)

This case is of importance in that it reiterates that a solicitor should not file his or her own affidavit on a motion when the solicitor or a member of his or her firm argues the motion. The Court noted that there are exceptions to this rule such as where the solicitor is the only person who can depose to the facts.

Nissho Iwai Company Limited et al. v Shanghai Ocean Shipping Company,

(June 20, 2000) No. T-2039-98 (F.C.T.D.), [2000] F.C.J. No. 1100

This was an application to stay proceedings on the grounds that Canada was not the convenient forum. The action arose out of the grounding of the "Ning Hai" in the Kurile Islands and the consequent loss of the Plaintiff’s cargo. The Plaintiff alleged that the Defendant, as provider of the officers and crew of the "Ning Hai", owed it a duty of care to provide competent and qualified officers and crew and that it breached this duty. The Defendant argued that the Peoples Republic of China was a more convenient forum for the dispute because the officers and crew were Chinese nationals and were trained in China, the Defendant was a Chinese corporation and the grounding occurred far away from Canada. The Plaintiff argued that Canada was a convenient forum because the cargo was loaded in Canada, the charterer was Canadian, and there were a number of witnesses in Canada who had the opportunity to observe the competence of the crew before it left on the fateful voyage. The Plaintiff further argued that there would be no discovery of documents or examinations for discovery in China. The Court held that the fundamental issue in the dispute was the competence of the crew and that most, if not all, of the evidence on this issue was in China. In result, the Court allowed the motion and stayed the proceedings.

Bayside Towing Ltd. v Canadian Pacific Railway,

(August 22, 2000) No. T-1692-99 (F.C.T.D.), [2000] F.C.J. No. 1534

This was an application to examine a non-party for discovery pursuant to Rule 238 of the Federal Court Rules. The underlying action was a limitation action brought by the tug owner to limit its liability for damage done to a bridge owned by the Defendant. The Defendant brought this motion to examine an experienced tug boat operator who had transited the bridge on various occasions. The Defendant wished to have this evidence to show the general practice of tug boat operators in transiting the bridge. The application was refused on the basis that the Defendant had not shown that it could not obtain the required information from other sources.

Ed Wahl Boat Builders and Repairs Ltd. v Holm,

(July 12, 2000) No. T-627-00 (F.C.T.D.), [2000] F.C.J. No. 1184

This was an application to strike out a paragraph of the Statement of Claim pleading a claim for unjust enrichment in the alternative to a main claim for breach of contract for the building of a boat. The Court allowed the application and struck out the offending paragraph on the basis that facts in support of the claim for unjust enrichment had not been pleaded and, more importantly, because the building contract which was specifically pleaded by the Plaintiff provided a juristic reason for any alleged unjust enrichment.

Ed Wahl Boat Builders and Repairs Ltd. v Holm,

(August 28, 2000) No. T-627-00 (F.C.T.D.), [2000] F.C.J. No. 1381

In this matter the Plaintiff boat builder commenced proceedings for an amount said to be owing by the Defendants in respect of a boat under construction and had the boat arrested. The Defendants counterclaimed for defective construction. During the course of the proceedings the Plaintiff ran into various difficulties with creditors, its counsel and its sole officer and director. As a result, the Plaintiff was unrepresented and the Defendants had no way of dealing with the matter. As a consequence the Defendants brought a motion for the release of the ship from arrest without posting security. The Release was granted.

Ghadban v The "Cleo D",

(April 5, 2000) No. T-1288-95 (F.C.T.D.), [2000] F.C.J. No. 420

This was an application by the Defendant for leave to continue the examination for discovery of the Plaintiff. The ground advanced in support of the application was that the Defendant’s former solicitors had not dealt properly with the various issues relevant to the case. The Court declined the application holding that there must be special reasons to order a further discovery and that the reason given by the Defendant was not sufficient.

Dismissal For Delay

Ferrostaal Metals Ltd. v The "Herakles" et al.,

(June 21, 2000) No. T-2619-95 (F.C.T.D.), [2000] F.C.J. No. 589

The issue in this matter was whether the action should be dismissed for delay. The facts were that the Statement of Claim was filed on December 12, 1995 but was not served until a year later. The Plaintiff further delayed in waiting almost one year to file a Reply to a Statement of Defence. With the introduction of the Case Management Rules, an order was made on March 16, 1999 requiring the parties to file Affidavits of Documents by May 10, 1999. The Plaintiff failed to file its Affidavit of Documents by May 10, 1999 and made application on January 25, 2000 for an additional 30 days to complete this step. At first instance, the Prothonotary declined the extension of time and struck the claim for delay. In doing so the Prothonotary noted that unjustified non-compliance with a court order is a serious matter which is even more so when the order is made pursuant to a Notice of Status Review. The Prothonotary further noted that prejudice to a party is not a factor to be taken into account in such applications. On appeal, the Motions Judge agreed with the reasons given by the Prothonotary. The Motions Judge dealt with an additional submission not made before the Prothonotary, i.e. that the delay was due to the fault of counsel and not the fault of the party. However, the Motions Judge found that the Plaintiff was itself partly responsible for the delay.

Adecon Ship Management Inc. v The "Calix" et al.,

(May 15, 2000) No. T-267-00 (F.C.T.D.)

Roxford Enterprises S.A. v The "Calix" et al.,

(May 15, 2000) No. T-123-00 (F.C.T.D.), [2000] F.C.J. No. 671

These matters were applications to strike an action in rem and to set aside the arrest of an alleged sister ship. The underlying claims were for breach of contract of sale. The Plaintiff alleged that it had purchased the "Calix" free and clear of encumbrances but that after the sale it had to pay off liens and encumbrances. The Plaintiff arrested an alleged sister ship to secure its claim. The Court noted that in rem sister ship jurisdiction under s. 43(8) of the Federal Court Act required that the arrested sister ship be beneficially owned by the owner of the "Calix", the ship that is the subject of the action, at the time the action was commenced. The Court held that at the time the action was commenced the "Calix" was owned by the Plaintiff and, therefore, there was no right to sister ship arrest. In the result the Court ordered that the action in rem be struck and that the arrest be set aside.

VII. Mortgages, Liens and Priorities

Re: Antwerp Bulkcarriers N.V.,

(2000) 187 D.L.R. (4^th) 106 (Q.C.A.)

This matter relates to the bankruptcy of the owners of the ship "Brussel" which was seized and sold by the Federal Court of Canada. After the seizure, the owner of the "Brussel" declared bankruptcy. A trustee in bankruptcy was appointed and the Belgian courts ordered that proceedings against the "Brussel" be stayed and that the "Brussel" be returned to the trustee. On application by the trustee, the Superior Court (Bankruptcy Division) in Montreal declared that the matter was one of bankruptcy not maritime law and ordered that the Federal Court return the "Brussel" to the trustee. On appeal, the Quebec Court of Appeal held that even if the matter was properly characterized as one of bankruptcy and not maritime law, the Superior Court did not have any jurisdiction to make an order against the Federal Court. The Federal Court of Canada in a prior judgment had already determined the issues that were brought before the Superior Court and, under these circumstances, the decision of the Superior Court was a collateral attack on another judgment already rendered, something which is prohibited.

Governor and Company of the Bank of Scotland v The "Nel",

(August 2, 2000) No. T-2416-97 (F.C.T.D.), [2000] F.C.J. No. 1305

This was a hearing to determine the priorities of claimants to the proceeds of sale of the "Nel" which had been sold pendente lite for US$5,000,000. The claimants and their claims were: the mortgagee under a fleet mortgage for the expenses of sale, for wages paid to the crew and repatriation costs, and for the amount owing under the current account mortgage; a bunker supplier who claimed a maritime lien for bunkers supplied in Panama; a travel agent who purchased airline tickets for crew members; a chemical supplier who supplied necessaries to the "Nel" and alleged sister ships; and, finally, a medical clinic who provided medical supplies.

The Prothonotary dealt first with the mortgagee’s claims. The claim for a first priority for expenses of sale was not seriously challenged and was allowed. The priority for wages and repatriation costs was also granted as there had been an assignment of these claims in favour of the mortgagee. The mortgagee’s claim for the net amount due and owing under its current account mortgage was challenged on various grounds including: that some of the funds advanced by it were distress payments and not secured; that the mortgagee had failed to take into account a profit earned by it on the purchase and resale of the "Blue L", another ship secured under the fleet mortgage; that the mortgagee’s claim should be capped as of the date it took out default judgment; and that there were special circumstances justifying a departure from the usual order of priorities.

With respect to the distress payments made by the mortgagee, the Prothonotary held that these payments were covered by the broad terms of the account current mortgage.

With respect to the purchase and resale of the "Blue L", the Prothonotary found that the mortgagee had purchased the "Blue L" through a nominee at a judicial sale held by the Court of South Africa. The mortgagee then re-sold the vessel to a customer of the mortgagee at a pre-arranged price which netted a profit to the mortgagee of approximately US$1,700,000. There was no evidence that the South African Court was aware of the mortgagee’s intent to purchase and re-sell the "Blue L". The Prothonotary held that the profit on the re-sale had to be taken into account by the mortgagee. In reaching this conclusion, the Prothonotary noted that mortgagees have a duty to obtain the best possible price when realizing upon security and further have a duty to provide full disclosure before bidding in a court ordered sale.

An additional argument advanced was that the claim of the mortgagee had to be capped as of the date that the mortgagee took out a default judgment on the basis that the original indebtedness had been merged with the judgment. The Prothonotary, however, held that the doctrine of merger did not operate to extinguish the original indebtedness but rather that its effect was to merge the remedy with the judgment and, if the creditor had more than one remedy he was free to pursue it even after judgment. In the instant case, the Prothonotary held that although the mortgagee had obtained a judgment on its debt this did not prevent the mortgagee from making a claim against the res under its mortgage.

Finally, it was argued that the usual order of priorities ought to be varied because the mortgagee delayed unreasonably in enforcing its mortgage and because it did not come to court with clean hands, having tried to hide the profit from the re-sale of the "Blue L". The Prothonotary declined to alter the usual order of priorities. He found that the arguments that the mortgagee had unreasonably delayed were based on supposition, innuendo and assumption and further found that the failed efforts to exempt the profit on the re-sale of the "Blue L" was not a sufficient special circumstance to justify altering the normal order of priorities.

The Prothonotary next considered the claim of a bunker supplier who had supplied bunkers to the "Nel" at Panama. The contract to supply the bunkers was arranged by telexes which provided that the supply was to be on the local terms and conditions of the fuel agent who made the actual physical delivery. Those terms and conditions stipulated that American law was to apply. The bunker supplier argued that the contract to supply the bunkers was governed either by Panamanian law or by American law and that, in either case, it had a priority. The Court accepted that Panamanian law gave the supplier a priority but held that because of the choice of law clause Panamanian law did not apply. The Prothonotary then considered the effect of American law. The mortgagee filed an affidavit of an expert on American law to the effect that although American law gave a supplier of necessaries a priority over a mortgage for necessaries supplied within the United States, it did not give a priority for necessaries supplied outside of the United States. The Prothonotary accepted this was a proper statement of American law but noted that under Canadian conflicts of laws rules the substantive nature of the right is to be determined by American law and the actual ranking of priorities is to be determined by Canadian law. He held that the lien was a maritime lien travelling with the ship and such a lien under Canadian ranking of priorities comes ahead of a mortgage.

The Prothonotary next considered the claim of the travel agent who was owed a substantial sum for airline tickets supplied to crew members. The travel agent alleged that it had a maritime lien under Greek law which, it alleged, incorporated the Brussels Convention on Liens and Mortgages and, in particular, article 2(5) which provides a lien for "claims resulting from contracts entered into or acts done by the master, acting within the scope of his authority...". For sake of argument the Prothonotary assumed that Greek law provided a maritime lien for claims falling under article 2(5) of the Brussels Convention. However, he held that this did not assist the claimant as there was no evidence that the contracts were entered into by the master. (Similar claims by a Belgian supplier based on Belgian law and by Bureau Veritas based on French law were refused for the same reason.) Further, the Prothonotary had serious reservations as to whether the claims were properly in rem claims. In the result, the travel agent’s claim for a maritime lien was not allowed.

The Prothonotary next considered the claim of a chemical supplier who had supplied chemicals to the "Nel" and various other ships which it alleged were sister ships of the "Nel". Dealing first with the claims for necessaries supplied to the "Nel" under contracts providing for American law to apply, the Prothonotary held that these were claims for which a maritime lien was available. The Prothonotary then considered whether the other ships to which necessaries were supplied were sister ships under section 43(8) of the Federal Court Act. These other ships were each owned by separate companies but were under common management and were all included in the fleet mortgage. Under all the circumstances, the Prothonotary held that the registered owners were sham companies and that the true owner was the managing company. As a result, the claimant was entitled to make sister ship claims. However, this did not assist the claimant as the Prothonotary went on to hold that necessaries supplied to sister ships did not give rise to a maritime lien.

The Prothonotary lastly considered the claim of a medical clinic that had provided medical supplies to the "Nel". The Prothonotary noted that the clinic had no ethical choice but to assist mariners with their medical needs when called upon and held that, in the circumstances, it was appropriate that the clinic should be given an enhanced priority equivalent to that of a maritime lien holder.

Imperial Oil Limited v Petromar Inc.,

(August 17, 2000) No. T-1492-97 (F.C.T.D.), [2000] F.C.J. No. 1222

The issue in this matter was whether the contract for the supply of marine lubricants was subject to American law and, consequently, whether the Defendant had a maritime lien. The Defendant, an American corporation, supplied lubricants through a sub-contractor to various Canadian registered ships owned by the Plaintiff at various Canadian ports. The ships were managed by an American corporation. The contract between the Defendant and the ships’ manager contained a choice of law provision calling for American law to be applied. Similarly, the contract between the Defendant and its sub-contractor who actually delivered the lubricants contained an American choice of law provision. There was no direct contract between the Defendant and the Plaintiff shipowner. The Plaintiff argued that the supply of lubricants should be governed by Canadian law because of s. 275 of the Canada Shipping Act (which provides a choice of law rule that matters relating to a ship shall be governed by the law of the port of registry) and because Canada was the place with the closest and most real connection to the transactions. On the issue of the application of s. 275 of the Canada Shipping Act the Court held that this section applied only to matters dealt with in Part III of the Act (ie. in relation to seamen) and had no application to the case at bar. On the second issue, the Court recognized that there were a number of factors connecting the matters in issue to both Canada and the United States. However, the most significant factors were the contracts relating to the supply of lubricants both of which applied American law. In the result, the Court held that the contracts for the supply of lubricants were governed by American law and that the Defendant had a maritime lien.

Holt Cargo Systems Inc. v The "Brussel",

(March 30, 2000) No. T-738-96 (F.C.T.D.), [2000] F.C.J. No. 392

This was an assessment of costs pursuant to a court order granting the Plaintiff costs on a solicitor and client basis for the arranging of the appraisal and sale of the "Brussel". The submitted Bill of Costs was challenged on the basis that it included many matters not related to the appraisal and sale and on the basis that it included fees rendered for parties other than the Plaintiff. On the first issue the Court held that the items in the Bill of Costs not related to appraisement and sale were insignificant. On the second issue the Court held that the Bill of Costs had to be reduced by deleting the fees related to clients other than the Plaintiff.

Richardson International Ltd. v The "MYS CHIKHACHEVA" et al.,

(February 2, 2001) No. T-1944-98 (F.C.T.D.), [2000] F.C.J. No. 138

This was an action for necessaries supplied to the "Mys Chikhacheva". The facts of the case were very complicated. The Plaintiff and one defendant, Starodubskoe, had entered into a series of agreements relating to the re-fitting of a vessel, the supply and purchase of fish products and the supply by the Plaintiff of provisions to the "Mys Chikhacheva". Starodubskoe later became bankrupt and the Plaintiff obtained a default judgment in Seattle, Washington. The "Mys Chikhacheva" was subsequently arrested in Nanaimo, British Columbia for the necessaries supplied to her and paid for by the Plaintiff. The Defendant resisted the Plaintiff’s claim arguing, inter alia, that the "Mys Chikhacheva" was not owned by Stardubskoe, that the Plaintiff had no maritime lien for necessaries, that the matter was res judicata because of the Washington judgment and that the Plaintiff had waived any right to a maritime lien. The Court reviewed the evidence of ownership and noted that the vessel had been registered both in Cypress and Russia with different registered owners. The Court concluded that Stardubskoe was not the registered owner but held that it was nevertheless a bareboat charterer. The Court next considered the issue of applicable law and concluded that the contracts were governed by American aw. In reaching this conclusion the Court noted that the agreements called for American law, that the place of arbitration was Seattle, that the currency of payment was United States dollars, that payments were to be made in Washington and that interest was fixed by reference to the prime rate of the U.S. Bank of Washington. The Court accepted the evidence of the Plaintiff’s expert on American law that, under American law, the Plaintiff had a maritime lien for the necessaries supplied and paid for by the Plaintiff. The Court further held that, under American law, a maritime lien could not be defeated unless there was an express waiver. On the issue of res judicata the Court held that the Washington judgment was not res judicata as the Washington case was against Stardubskoe whereas the case at bar was based on a maritime lien on the vessel "Mys Chikhacheva". In result, the Plaintiff was awarded judgment.

Nedship Bank N. V. v The "Zoodotis",

(May 18, 2000) No. T-186-99 (F.C.T.D), [2000] F.C.J. No. 886

The Plaintiff mortgagee was unable to produce the deponent of its affidavit of claim for cross-examination and brought this application for leave to substitute another witness for cross-examination. The Court stated that the general rule was affidavits will be struck out if the deponent is not produced for cross-examination and replacement affidavits will not be allowed in the absence of justifiable grounds. The Court concluded, however, that to strike out the affidavit would be unjust and unjustifiable and allowed the Plaintiff to file a second affidavit adopting the contents of the first and to produce the deponent of the second affidavit for cross-examination. The Court further held that the cross-examining party had the right to chose the witness who would depose the second affidavit and be produced for cross-examination.

Royal Bank of Scotland plc v The "Golden Trinity" et al.,

[2000] 4 F.C. 211 (F.C.T.D.)

This motion considered the scope of cross-examination on affidavits of claim in a proceeding to determine priorities. The Prothonotary reviewed the various authorities relating to the issue and noted that the authorities supported both a narrow approach and a broad approach, depending on the context. The Prothonotary borrowed concepts from both approaches to arrive at some broad general principles as to the proper scope of cross-examination on affidavits of claim in a priorities hearing. First, cross-examination on affidavits must have factual underpinnings in the deponent’s affidavit, in other affidavits filed, in answers giving rise to collateral questions or in the documents attached to affidavits or otherwise produced. Second, the deponent of an affidavit of claim is an agent for and swears the affidavit on behalf of a party or claimant. He or she therefore has a duty to inform himself or herself. The duty to inform is not akin to what would be required on an examination for discovery but is bounded by relevance and whether the inquiry would be unduly onerous. Third, the production of documents on a cross-examination is governed by Rules 87 (Examinations out of Court), 91(2)(c) (Production for inspection at examinations), and 94 (Production on examinations). The documents must be relevant and in the possession, power and control of the person being examined, however, the scope is not as broad as discovery of documents. The scope is limited by relevance, the amount of material requested and whether it would be unduly onerous to require production.

Royal Bank of Scotland plc v The "Kimisis III" et al.,

(June 5, 2000) No. T-38-99 (F.C.T.D.), [2000] F.C.J. No. 909

This was an application by a lien claimant for leave to file a supplementary affidavit of claim attaching a document showing delivery of necessaries supplied to the defendant ship. The Court refused the application noting that the document had been specifically requested one year earlier and not produced and that the time for filing affidavits had expired 14 months previous. The Court stated that the time for filing affidavits of claim or supplementary affidavits could be extended provided there were special circumstances that are fully explained. In the circumstances, however, the Court held that the Applicant had not satisfactorily explained why the document was not produced earlier.

Royal Bank of Scotland plc v The "Golden Trinity" et al.,

(June 16, 2000) No. T-32-99, T-38-99 & T-119-99 (F.C.T.D.), [2000] F.C.J. No. 938

This was an application to strike out the affidavits of claim of the Plaintiff mortgagee on the grounds that the deponent produced for cross-examination was inadequately prepared. The Court agreed with the Applicant that the cross-examination was unsatisfactory in that the witness gave clearly incorrect answers and was not properly informed but refused to strike out the affidavits of claim. The Court noted that it would normally require the original witness to better inform himself and to re-attend for further cross-examination. However, in the circumstances, the Court felt that the original witness was not able to properly inform himself and therefore ordered that a second witness be produced for cross-examination.

Holt Cargo Systems Inc. v The "Brussel",
(2000) 16 C.B.R. (4^th) 188, [2000] F.C.J. No. 197 (F.C.T.D.)

This was a hearing to determine priorities to the sale proceeds of the Defendant vessel. The claimants and their claims were: Holt Cargo Systems for costs of sale and Marshall's expenses; Halifax Port Corporation for port dues owed by the "Brussel" and her sister ships; Atlantic Pilotage Authority for pilotage services rendered to the "Brussel" and her sister ships; American maritime lien holders for goods and services supplied to the "Brussel" and to sister ships of the "Brussel"; the mortgagee for the mortgage debt; Canadian necessaries suppliers; and, the Trustee in Bankruptcy of the bankrupt ship owner. The Court gave priority over the mortgagee to the claims of Holt Cargo Systems, the Halifax Port Authority, the Pilotage Authority and the various American maritime lien claimants who had supplied goods and services to the "Brussel". All of the other claimants ranked after the mortgagee, meaning they recovered nothing.

The claim of Holt Cargo Systems for the costs and disbursements related to the sale of the "Brussel" were granted a priority as were other costs which the court had previously ordered would be given a priority equivalent to Marshall's expenses.

The claim of the Halifax Port Corporation was granted a priority for port dues owed by the "Brussel" on the basis that s. 43(5) of the Canada Ports Corporation Act gave it a priority over all other claims except the claims of seamen for wages. The Port Corporation was, however, not given priority for port dues owed by sister ships of the "Brussel". The Court held that this claim was a mere statutory right of action in rem ranking behind the mortgagee.

The claim of the Atlantic Pilotage Authority was allowed and given priority for the services rendered to the "Brussel" but not for the services rendered to sister ships. In awarding the Pilotage Authority a priority the Court noted that the Pilotage Act did not confer a priority, however, the Prothonotary was referred to Osborn Refrigeration Sales and Service Inc. v The Ship "Atlantean I", [1979] 2 F.C. 661, varied on other grounds 7 D.L.R. (4th) 395, and Ultramar Canada Inc. v Pierson Steamships Ltd. et al., (1982), 43 C.B.R. (N.S.) 9, which did grant a lien for pilotage services. On the basis of these authorities, and because the other claimants appeared to not contest the claim, the Court granted the lien for pilotage services. (Note: The authorities on this point are not unanimous. In Ostogota Enskilda Bank v Starway Shipping Ltd., (1994), 78 F.T.R. 304 at 306, Muldoon J. said it had not been established "that there is in law a maritime lien for Canadian pilotage services". This decision was apparently not brought to the attention of the Court in The "Brussel".)

With respect to the American lien claimants, the Trustee challenged the recognition of and the priority given to such liens and invited the Court to reconsider these issues. The Court held that the recognition and priority of such liens had been established by the Supreme Court of Canada and that it was not the role of the court to question established authority unless the circumstances were exceptional, which they were not. The Court did, however, hold that the American claimants who had supplied goods and services to sister ships of the "Brussel" were not entitled to maritime liens and, therefore, were not entitled to a priority.

The Court ordered that the balance of the sale proceeds after payment of all of the above creditors would go to the mortgagee who had a claim in excess of $68 million.

One of the other claimants, Halterm, had paid the wharfage for the "Brussel" to the Halifax Port Corporation and claimed to be subrogated to the statutory lien of the Port Corporation. The Court found, however, that there was no evidence of an explicit assignment of the Port Corporation’s lien rights and further noted that the Canada Ports Corporation Act was silent regarding whether such rights could be assigned. The Court ultimately held that there had been no assignment in favour of Halterm. In reaching this decision the Court was careful to note that it did not "foreclose the possibility that a maritime right in rem or other lien may be assignable". (Note: in The "Atlantis Two" the Court approved of an assignment of the seamens’ liens for repatriation costs to the Crown.)

Another claimant, Bridge Oil, alleged that it was entitled to a maritime lien for bunkers supplied to the "Brussel" in Belgium based on Article 2(5) of the Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages, 1926, which gives a maritime lien for contracts entered into by a Master provided, inter alia, the vessel is away from her home port and the contracts were necessary for the preservation of the ship or the continuation of the voyage. The Court disallowed the lien claim on the grounds that the bunkers were ordered by the owner and not the Master.

A lessor of containers alleged that it had a maritime lien for unpaid lease payments on containers supplied to the "Brussel". The lease agreement expressly provided that the lessor was to have a contractual lien against the lessee’s vessels. The Court held that such a lien has no special priority as against third parties. (Note: In The "Atlantis Two" the Prothonotary seemed to suggest that a contractual lien might be of some effect in a priorities hearing.)

VIII. Miscellaneous

North Ridge Fishing Ltd. v The "Prosperity" et al.,
(2000) 74 B.C.L.R. (3d) 383, 186 D.L.R. (4^th) 374 (B.C.C.A.)

This was an appeal from a summary trial application. The appeal arose out of a net cutting incident that occurred during the roe herring fishery. The Plaintiff alleged that the Defendant vessel "Prosperity" negligently cut its net during the fishery resulting in a loss of fish. At the time, the "Prosperity" had been chartered for the entire 1997 herring season. A term of the agreement provided that only three named individuals were permitted to operate the vessel. One of those individuals did, in fact, operate the vessel. At issue in the summary trial and on appeal was whether the agreement was a charter by demise and the effect of such a charter by demise on the liability of the owner. The Court of Appeal held that the agreement did amount to a charter by demise as the owner effectively relinquished custody, possession and control over the "Prosperity" to the charterer. The fact that the charterer was required to appoint one of three named individuals to operate the vessel did not detract from this conclusion since it was the vessel’s insurer that required this condition and the owner had no right to chose which of the three named individuals would be appointed. The Court of Appeal further held that as all of the crew were appointed by the charterer, there was no vicarious liability on the part of the owner. A second issue on the appeal was whether the owner was negligent in failing to properly train the master or in holding him out as being properly trained. The Court of Appeal agreed with the Trial Judge that an owner of a ship under bareboat charter had no duty to train those manning the vessel and that simply agreeing to have the ship operated by one of three individuals was not a representation as to the training of those individuals. In the result, the appeal and the action against the owner was dismissed.

North Ridge Fishing Ltd. et al. v The "Prosperity" et al.,
(2000) 78 B.C.L.R. (3d) 388 (B.C.S.C.)

This action arose out of a shotgun opening in the roe herring fishery, an event described by the Court as "a most unusual maritime adventure where, from an opening ‘gun’, many vessels -sometimes dozens- would set their nets at speed in very close proximity during a short period of time". During the course of the opening the Defendant vessel "Prosperity" cut the net of the Plaintiffs’ vessel "Savage Fisher" with the result that the Plaintiffs allegedly lost a substantial tonnage of fish. The issues in the case were who was at fault, damages and limitation of liability. On the issue of fault the Court first considered whether Rule 15 of the Collision Regulations (the crossing rule) had any application. The Court held this rule did not apply as the vessels were not actually crossing and neither master considered that they were. The Court next considered Rules 5 (look-out) and 7 (risk of collision). The Court held that there was an insufficient look-out on the Plaintiffs’ vessel which deprived the master of the ability to determine whether a risk of collision existed. With respect to the "Prosperity" the Court held that there was a sufficient look-out of two persons in the wheelhouse but that the master of the "Prosperity" failed to go astern or stop when he should have. The Court ultimately apportioned liability 75% to the Plaintiffs and 25% to the Defendants. Regarding the issue of damages, and specifically the tonnage lost as a result of the net cutting, the Court held that the best approach was to use the average catch of the vessels involved in the opening. Finally, the Court considered the issue of limitation of liability, which was recognized as probably a moot point given the apportionment of liability and assessment of damages. The Court noted that there were two prior decisions that had allowed limitation of liability under similar circumstances and stated that it would have followed those decisions and allowed limitation, if necessary. It is noteworthy, however, that in the absence of precedent the Court indicated that it would not have allowed the Defendants to limit liability. The Court indicated that the decision of an owner to engage in a shotgun herring opening would be sufficient by itself to disentitle the owner to limitation. (Note: In supplementary reasons issued December 6, 2000, [2000] B.C.J. No. 2443, the Court dealt with the issue of costs. The Court awarded the Plaintiffs 25% of their party and party costs and awarded the Defendants 75% of their pre-trial costs (taxed at 70% of special costs) and 75% of their costs from the first day of trial. The special cost award in respect of pre-trial costs was because of delay by the Plaintiffs in the pre-trial proceedings.)

Transport Navimex Canada Inc. v Canada,
(February 4, 2000) No. A-27-98 (F.C.A.), [2000] F.C.J. No. 161

In this matter the Defendant, Transport Canada, had invited the submission of bids to transport cargo to Greenland. The Plaintiff submitted a bid to carry the cargo on the "Glencoe" which was accepted by the Defendant. After acceptance, the Defendant increased the amount of cargo it wished to transport and purported to terminate the agreement with the Plaintiff on the grounds that the "Glencoe" did not have the capacity to carry the increased cargo. The Plaintiff took the position throughout that the "Glencoe" was capable of carrying the increased cargo and brought this action for breach of contract claiming the costs of chartering the "Glencoe", expenses and lost profits. At trial, the Trial Judge held: (1) that the "Glencoe" was not capable of carrying the increased cargo; (2) that the Defendant had unlawfully and without justification terminated the contract with the Plaintiff; but (3) that the Plaintiff had not suffered any damages. The Plaintiff appealed the first and third findings. On appeal, the Federal Court of Appeal held that the first finding was one of fact based on the Trial Judge’s assessment of expert evidence and that the judge made no "palpable and overriding" or "specific and identifiable" error. Accordingly, this finding was affirmed. However, the third finding that the Plaintiff had suffered no damages was reversed. This finding was based on the fact that the Plaintiff had not personally chartered the "Glencoe". The Court of Appeal held that as the Defendant never questioned the fact that the Plaintiff had chartered the "Glencoe" the Plaintiff did not have a duty to prove this fact. Further, and in any event, the Court of Appeal held that the evidence established that the Plaintiff had chartered the "Glencoe", albeit through a related corporation. As a result, the Court of Appeal held that the Plaintiff was entitled to damages for the chartering of the "Glencoe" and for the lost profit calculated on the basis of the cargo the "Glencoe" could have carried.

R v The "Point Vibert",
[2000] N.S.J No. 147 (N.S. Prov. Ct.)

This is a rare case in which a ship was found not guilty for discharging a pollutant. The Court found that although the pollutant emanated from the ship the cause of the pollution was the failure of shore based personnel to stay at their posts. Specifically, the procedure set up for the fuelling operation was for the shore based personnel to operate the control valve as instructed by the crew. During the course of the fuelling operation it was apparent that the rate of flow was too great and the crew shouted to the person operating the valve to restrict the flow. However, that person had inexplicably left the valve unattended with the result that the fuel overflowed. Under the circumstances, the Court held that the discharge occurred as a result of events outside the control of the vessel or the crew.

R v Glenshiel Towing Co. Ltd.,
(July 6, 2000) No. C991526 (B.C.S.C.)

On December 16, 1997, the tug "Glenshiel" was found heeled over and submerged at her mooring in False Creek, Vancouver. As a result of the sinking a considerable amount of diesel fuel escaped from the vessel into the water and the owner was charged pursuant to s. 668 of the Canada Shipping Act with discharging a pollutant. At trial, the accused was acquitted on the grounds that the Crown had failed to prove sufficient evidence to support a conviction. On appeal, the Crown argued that all it needed to prove to support a conviction was that the pollutant emanated from the ship and, once it had proven this, the onus shifted to the accused to prove that reasonable care was exercised to prevent a discharge. The accused, on the other hand, argued that it was not sufficient for the Crown to prove merely that the pollutant emanated from the ship. Rather, the accused argued, it was incumbent on the Crown to prove that the accused caused the discharge. The Judge on appeal agreed with the accused holding that the Crown must prove some causal link between the accused and the discharge of the oil before liability will arise, at which point the onus shifts to the accused to prove due diligence.

Canadian Salt Company Limited v The "Irving Cedar" et al.,
(September 6, 2000) No. T-689-95 (F.C.T.D.), [2000] F.C.J. No. 1410

This action arose out of a collision between a ship and a wharf that occurred when the ship was performing ice breaking operations for the Plaintiff in the vicinity of the wharf. The Defendants denied liability on the grounds that they were not negligent and further relied upon an exclusion clause and time for suit provision contained in the contract with the Plaintiff. The Plaintiff denied that the clauses were part of the contract and further argued that on their proper interpretation the clauses did not apply to exclude the Defendants’ liability or extinguish the claim. On the issue of negligence the Court seemed to accept that there was a presumption of negligence on the part of the Defendants given that the ship had struck a stationary object. In any event, the Court did find as a fact that the Defendants had been negligent. With respect to the application of the conditions, the Court found that the conditions applied. In reaching this conclusion the Court emphasized that the conditions had been provided to the Plaintiff by the Defendants together with their quotation and that the Plaintiff had accepted that quotation with only minor changes. The Court accepted that there may have been a subsequent conversation between the Plaintiff and Defendants in which the Plaintiff advised some terms of the contract were not acceptable, however, such conversation occurred after the quotation had been accepted and therefore after the contract had been entered into. The exclusion clause relied upon by the Defendants was as follows:

"The tug owner shall not in any circumstances be liable for any loss or damage suffered by the Hirer or caused to or sustained by the Tow in consequence of loss or damage howsoever caused to or sustained by the Tug or any property on board the tug."

The Court noted that such clauses must be interpreted against the interest of the person who made it. The Court considered that the clause was unclear and ambiguous and held that it did not apply to relieve the Defendants from liability for damage caused by their negligence to the wharf.

The Court next considered the notice and time for suit clause of the contract which provided that notice of a claim had to be given in writing within six months and that suit must be brought within one year. The Court held that this clause was most clear and that as the Plaintiff had not brought suit within one year its action was extinguished. In the result, the Plaintiff’s claim was dismissed.

Dryburgh v Oak Bay Marina (1992) Ltd.,
(2001) 1 F.C. 192 (F.C.T.D.)

This was an action for damages caused to a pleasure craft when docks at the Defendant marina broke apart during a severe wind storm. The claim was against the marina and its President. The Plaintiff alleged that the marina was poorly designed and constructed and that the President oversaw the design and construction. The Defendants argued that they were protected by an exclusion clause in the moorage contract signed by the Plaintiff. The exclusion clause provided:

"All vessels, boathouse and ancillary equipment of the Owner stored or moored on the Company’s premises shall be solely at the Owner’s risk, and the Company shall not be responsible under any circumstances for any loss or damage caused thereto whether caused by negligence of the Company, its servants or agents or the acts of third parties, or otherwise."

On the face of the contract were the names of three entities, one of which was the Defendant marina. There was a mark in the box next to the name of the Defendant Marina. The Plaintiff argued that the exclusion clause did not apply to relieve the Defendants of liability because the identity of "Company" was ambiguous, the clause did not extend to past defects in design or construction of the marina, and the clause did not apply to the Defendant President. On the first point the Prothonotary held that it was clear that the contract was between the Plaintiff and the Defendant marina. On the second point, the Prothonotary noted that the exclusion clause was very broadly worded. It referred to any loss or damage without limitation. The Prothonotary held that to interpret the contract in the manner suggested by the Plaintiff would be to distort the contract and produce an unrealistic result not in accord with commercial reality. On the final point, the Prothonotary held that the President was protected by the test set out by the Supreme Court of Canada in London Drugs Ltd. v Kuehne & Nagel Ltd., [1993] 1 W.W.R. 1, in that, by implication it was intended that the benefit of the exclusion clause would extend to the President and the President was acting in the course of his employment. In the result, the exclusion clause was enforced and the Plaintiff’s claim was dismissed.

Prior v The "Talapus",
(July 18, 2000) No. T-595-96 (F.C.T.D.), [2000] F.C.J. No. 1182

This was an action for unpaid seaman’s wages. The Defendant defended the claim, inter alia, on the basis that a set-off should be made for food and accommodations supplied to the crew. The Court did not allow the set-off for these items as the evidence did not support that they were to be an agreed deduction.

Kajat v The "Arctic Taglu",
[2000] 3 F.C. 96, 252 N.R. 152 (F.C.A.)

This was an appeal from a judgment of the Trial Division in which the Defendants were found 85% at fault for a collision between the fishing vessel "Bona Vista" and a tug-barge combination operated by one of the Defendants. A critical determination made by the Trial Judge was that the accident occurred because of the use of a search light on the tug to warn mariners of the existence of the barge by panning the light up and down the port side of the barge . She found that this was perceived by those on board the "Bona Vista" as a signal of an unseen danger to the port side of the barge causing the "Bona Vista" to turn to port, a manoeuver which resulted in the collision. Her conclusions were based on the evidence of two mariners who each testified that they had encountered the tug-barge combination and that they had interpreted the panning search light as a signal of danger to the port side of the barge and turned to port to avoid the unseen danger. The Defendants argued that the Trial Judge erred in allowing the evidence of these two mariners. The Federal Court of Appeal agreed. The Court held that the Trial Judge had an obligation to determine whether the similar fact evidence was logically probative, i.e. whether it is logically relevant to determining the matter in issue. The Court was unable to conclude from the record whether the Trial Judge had made a specific determination to that effect and, therefore, allowed the appeal and ordered a new trial. (It is noteworthy that the Court of Appeal did not determine that the evidence of the two mariners should not have been admitted by the Trial Judge. The Court merely determined that the Trial Judge had not specifically addressed her mind to the appropriate test to be applied before admitting similar fact evidence.)

Bevan v Gartside Marine Engines Ltd. et al.,
[2000] B.C.J. No. 528 (B.C. Prov. Ct.)

See summary above under "Marine Insurance".

Altenburger v Buzaglo,
[2000] O.J. No. 4438 (Ont. S.C.)

This was an action by a boat repairer to recover the cost of repairs effected to the Defendant’s boat and for storage costs. The Defendant argued that most of the repair work was unnecessary or not authorized and that the Plaintiff had caused damage to the boat while in his possession. The Court had little difficulty finding the Defendant liable for the repair costs which had been approved as fair and reasonable by a surveyor. The Court also found the Defendant liable for storage charges as the Plaintiff had specifically advised the Defendant that he would charge for storage. With respect to the Defendant’s counterclaim that the boat was damaged because the Plaintiff failed to cover it, the Court noted that the Defendant was aware the boat was not covered and could have covered it himself. Further, the Defendant was aware that marinas normally charge an additional amount to cover boats and the Defendant was not paying the Plaintiff. Accordingly, the counterclaim was dismissed.

TABLE OF CASES

1013799 Ontario Ltd. v Kent Line International Ltd.,
[2000] O.J. No. 3074, (2000) 22 C.C.L.I. (3d) 312 (Ont. S.C.)

Adecon Ship Management Inc. v The "Calix" et al.,
(May 15, 2000) No. T-267-00 (F.C.T.D.)

Alberta Garment Manufacturing Co. v Purolator Courier Ltd.,
[2000] A.J. No. 317 (Alta. Prov. Ct.)

Altenburger v Buzaglo,
[2000] O.J. No. 4438 (Ont. S.C.)

Bayside Towing Ltd. v Canadian Pacific Railway Company,
[2000] 3 F.C. 127 (F.C.T.D.)

Bayside Towing Ltd. v Canadian Pacific Railway,
(August 22, 2000) No. T-1692-99 (F.C.T.D.), [2000] F.C.J. No. 1534

Bevan v Gartside Marine Engines Ltd. et al.,
[2000] B.C.J. No. 528 (B.C. Prov. Ct.)

Boutchev v D.H.L. International Ltd.,
[2000] A.J. No. 1 (Alta. Prov. Ct.)

Campbell’s Meat Market Ltd. v The "Merak",
(July 21, 2000) No. T-926-00 (F.C.T.D.), [2000] F.C.J. No. 1224

Canadian Forest Products Inc. v Termar Navigation Co. Inc.,
(March 15, 2000) No. A-934-97 (F.C.A.), [2000] F.C.J. No. 450

Canadian Pacific Railway Company v The "Sheena M" et al.,
(November 28, 2000) No. T-1692-99 (F.C.T.D.), [2000] F.C.J. No. 1953

Canadian Pacific Railway Company v The "Sheena M" et al.,
[2000] 4 F.C. 159 (F.C.T.D.)

Canadian Salt Company Limited v The "Irving Cedar" et al.,
(September 6, 2000) No. T-689-95 (F.C.T.D.), [2000] F.C.J. No. 1410

Capilano Fishing Ltd. v The "Qualicum Producer",
(January 17, 2000) Van. Reg. No. C072709 (B.C.S.C.), [2000] B.C.J. No. 72

Conohan v The Cooperators,
(November 28, 2000) No. T-2092-97 (F.C.T.D.), [2000] F.C.J. No. 1969

Dryburgh v Oak Bay Marina (1992) Ltd.,
(2001) 1 F.C. 192 (F.C.T.D.)

Ecu-line N.V. v Z.I. Pompey Industrie,
(January 25, 2001) No. A-29-00 (F.C.A.), [2000] F.C.J. No. 96

Ed Wahl Boat Builders and Repairs Ltd. v Holm,
(August 28, 2000) No. T-627-00 (F.C.T.D.), [2000] F.C.J. No. 1381

Ed Wahl Boat Builders and Repairs Ltd. v Holm,
(July 12, 2000) No. T-627-00 (F.C.T.D.), [2000] F.C.J. No. 1184

Elkhorn Developments Ltd. v Sovereign General Insurance Co. et al.,
[2000] B.C.J. No. 834, (2000) 18 C.C.L.I. (3d) 203 (B.C.S.C.)

Encan Liquidation v Transintra Canada,
(November 29, 2000) No. T-1183-00 (F.C.T.D.), [2000] F.C.J. No. 1971

Ferrostaal Metals Ltd. v The "Herakles" et. al.,
(June 21, 2000) No. T-2619-95 (F.C.T.D.), [2000] F.C.J. No. 589

Fibreco Pulp Inc. et al v Star Shipping A/S et.al.,
(2000) 257 N.R. 291 (F.C.A.)

Ghadban v The "Cleo D",
(April 5, 2000) No. T-1288-95 (F.C.T.D.), [2000] F.C.J. No. 420

Governor and Company of the Bank of Scotland v The "Nel",
(August 2, 2000) No. T-2416-97 (F.C.T.D.), [2000] F.C.J. No. 1305

Holt Cargo Systems Inc. v The "Brussel",
(2000) 16 C.B.R. (4^th) 188, [2000] F.C.J. No. 197 (F.C.T.D.)

Holt Cargo Systems Inc. v The "Brussel",
(March 30, 2000) No. T-738-96 (F.C.T.D.), [2000] F.C.J. No. 392

Hyundai Merchant Marine Co. Ltd. v Anraj Fish Products Industries Ltd. et.al.,
(June 20, 2000) No. A-836-99 (F.C.A.), [2000] F.C.J. No. 944

Imperial Oil Limited v Petromar Inc.,
(August 17, 2000) No. T-1492-97 (F.C.T.D.), [2000] F.C.J. No. 1222

Inter Atlantic Canada Ltd. v The "Rio Cuyaguateje",
(2000)180 F.T.R. 318 (F.C.T.D.)

John E. Canning Ltd. v Tripap Inc.,
(April 5, 2000) No. T-477-98 (F.C.T.D.), [2000] F.C.J. No. 418

Joy Shipping Inc. v Empressa Cubana Des Fletes of Cuba et al.,
(June 20, 2000) No. T-221-99 (F.C.T.D.), [2000] F.C.J. No. 945

Kajat v The "Arctic Taglu",
[2000] 3 F.C. 96, 252 N.R. 152 (F.C.A.)

Kanematsu GMBH v Acadia Shipbrokers Limited et al.,
(2000) 259 N.R. 201 (F.C.A.)

Laing v Boreal Pacific,
(October 13, 2000) No. A-166-99 (F.C.A.), [2000] F.C.J. No. 1665

Middleton v The "Ocean Tribune",
(2000] B.C.J. no. 2271 (B.C.S.C.)

Nedship Bank N. V. v The "Zoodotis",
(May 18, 2000) No. T-186-99 (F.C.T.D), [2000] F.C.J. No. 886

Nicholson v Canada,
[2000] 3 F.C. 225 (F.C.T.D.)

Nissho Iwai Company Limited et al. v Shanghai Ocean Shipping Company,
(June 20, 2000) No. T-2039-98 (F.C.T.D.), [2000] F.C.J. No. 1100

North Ridge Fishing Ltd. et al. v The "Prosperity" et al.,
(2000) 78 B.C.L.R. (3d) 388 (B.C.S.C.) ,

North Ridge Fishing Ltd. v The "Prosperity" et al.,
(2000) 74 B.C.L.R. (3d) 383, 186 D.L.R. (4^th) 374 (B.C.C.A.)

Nuvo Electronics Inc. v London Assurance et al.,
(2000) 49 O.R. (3d) 374 (Ont. S.C.) ,

Pantainer Ltd. v 996660 Ontario Ltd.,
(March 17, 2000) No. T-231-99 (F.C.T.D.), [2000] F.C.J. No. 334 ,

Paramount Enterprises International Inc. v The "An Xin Jiang" et al.,
(December 15, 2000) No. A-924-97 & A-929-97 (F.C.A.), [2000] F.C.J. No. 2066

Porto Seguro Companhia De Seguros Gerais v The "Federal Danube" et al.,
(January 31, 2001) No. T-2057-85 (F.C.T.D.), [2001] F.C.J. No. 152 ,

Prior v The "Talapus",(July 18, 2000) No. T-595-96 (F.C.T.D.), [2000] F.C.J. No. 1182

R v Glenshiel Towing Co. Ltd.,
(July 6, 2000) No. C991526 (B.C.S.C.)

R v Jail Island Aquaculture Ltd.,
[2000] N.B.J. No. 338 (N.B.Q.B.)

R v The "Point Vibert",
[2000] N.S.J No. 147 (N.S. Prov. Ct.)

R v Williams,
(March 13, 2000) No. CC990702 (B.C.S.C.)

Rainbow Technicoloured Wood Veneer Ltd. v The "Canmar Conquest" et. al.,
(June 28, 2000) No. T-2580-97 (F.C.T.D.), [2000] F.C.J. No. 1032

Re: Antwerp Bulkcarriers N.V.,
(2000) 187 D.L.R. (4^th) 106 (Q.C.A.)

Richardson International Ltd. v The "MYS CHIKHACHEVA" et al.,
(February 2, 2001) No. T-1944-98 (F.C.T.D.), [2000] F.C.J. No. 138

Roxford Enterprises S.A. v The "Calix" et al.,
(May 15, 2000) No. T-123-00 (F.C.T.D.), [2000] F.C.J. No. 671

Royal Bank of Scotland plc v The "Golden Trinity" et al.,
(June 16, 2000) No. T-32-99, T-38-99 & T-119-99 (F.C.T.D.), [2000] F.C.J. No. 938

Royal Bank of Scotland plc v The "Golden Trinity" et al.,
[2000] 4 F.C. 211 (F.C.T.D.)

Royal Bank of Scotland plc v The "Kimisis III" et al.,
(June 5, 2000) No. T-38-99 (F.C.T.D.), [2000] F.C.J. No. 909

Ruby Trading S.A. v Parsons et al.,
(November 21, 2000) No. A-90-00 (F.C.A.), [2000] F.C.J. No. 1893

Shipdock Amsterdam B.V. v Cast Group Inc.,
(2000) 179 F.T.R. 292 (F.C.T.D.)

Texserv Inc. v Incon Container USA Ltd. et al.,
(2000) 48 O.R. (3d) 427 (Ont. S.C.)

Third Ocean Marine Navigation LLC v The "GTS Katie",
(October 23, 2000) No. T-1383-00 (F.C.T.D.), [2000] F.C.J. No. 1704

Trade Arbed Inc. v Toles Ltd.,
(November 7, 2000) No. T-636-99 (F.C.T.D.), [2000] F.C.J. No. 1934

Transport Navimex Canada Inc. v Canada,
(February 4, 2000) No. A-27-98 (F.C.A.), [2000] F.C.J. No. 161

World of Art Inc. v Koninklijke Luchtraart Maatschappij N.V.,
[2000] O.J. No. 2364 (Ont. S.C.) affirmed [2000] O.J. No.4567 (Ont. C.A.)