Service - Case Summaries
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Practice -Service - Whether service valid - Whether time for service can be extended
Allchem Industries Industrial v. CMA CGM Florida (Vessel) , 2015 FC 558
Précis: The court held that service of a statement of claim on a freight forwarder, who sometimes acted as agent for the defendant and who was identified as an agent on the defendant's website, was valid service.
Facts: The plaintiffs were the owners of cargo loaded on the “CMA CGM Florida”. The cargo was damaged when the vessel was involved in a collision. The plaintiffs purported to serve the statement of claim on Topocean, one of the defendants, by serving a freight forwarder. The freight forwarder sometimes acted as agent for Topocean but had not acted as such in relation to the cargo on the “CMA CGM Florida” or in relation to any services ever rendered to the plaintiffs. Topocean brought this application to set aside the service.
Decision: Motion dismissed.
Held: Given the admission of Topocean that the freight forwarder is an agent for shipments with a Canadian connection, it is clear that the forwarder carries on some integral part of Topocean’s business in Canada. The fact that the forwarder was not utilized in this capacity for this shipment is not important. Further, the forwarder considered it had a duty to bring the statement of claim to the attention of Topocean and promptly forwarded the document. Additionally, Topocean’s website identifies the forwarder as an agent. “Topocean has put forward no evidence to contradict the impression created by the website’s statements.” Accordingly, the service is valid.
Practice – Service – Addition of Parties - Limitation Periods
Shell Canada Energy v. General MPP Carriers, 2011 FC 217
This was an application by the owner of one of the defendant ships to set aside service and a corollary application to amend the Statement of Claim. The plaintiff had filed a Statement of Claim for damage to cargo on the last day of the one year limitation period. The Statement of Claim included the ship as a defendant but not the owner in personam. The Statement of Claim was sent by courier and fax to the owner but as service had to be effected in accordance with the Hague Convention the plaintiff obtained an ex parte order extending the time for service “on the owners” and ultimately effected service on the owner in Germany. The Court predictably held that service of the Statement of Claim on the owner was not service on the ship. The Court further held that the ex parte order extending the time for service did not indirectly create a right of action “in personam”. With respect to the plaintiff‟s motion to amend the Statement of Claim by adding the owner as an in personam defendant, the Court refused the application on the basis that it was not the correction of a misnomer and the limitation period had passed.
Extension of Time – Service – Substitutional Service
Arrow Corporation Inc. v. The “Sea Tiger” et al., 2004 FC 1502
This was an application to extend time for service of a Statement of Claim on one of the Defendants. The facts were that the Plaintiff had provided the Defendant with a copy of the Statement of Claim shortly after it was issued and later asked the Defendant to acknowledge service. The Defendant did not acknowledge service so the Plaintiff arranged to have it served but the service occurred out of time. The Plaintiff then indicated it would bring a motion to extend the time for service but delayed some six months in bringing the application. The Prothonotary noted that the test to apply was whether there was a continuing intent to pursue the claim, whether there is an arguable case and whether there would be prejudice to the proposed defendant should the extension be granted. The underlying consideration or general principal is to do justice between the parties. Applying this test the Prothonotary found that the explanation for the delay and the demonstration of a continuing intent were weak. He further found there was an arguable case and no prejudice. The important factor, however, was that the Defendant had acknowledged receipt of the Statement of Claim the day after it was issued. The Prothonotary suggested that this might have been sufficient to support a motion under Rule 147 validating the service noting that good service merely required proof that a legible copy of the document came into the hands of the Defendant. Under these circumstances the Prothonotary considered it would be an injustice to not allow the extension of time.
Service – Extension of Time
Finlandia Cheese Inc. v. Shoreline Shipping SA et al., 2003 FC 9
In this matter the Prothonotary granted the Plaintiff an extension of time within which to serve its Statement of Claim and validated service by mail. The facts were that the Plaintiff had mailed the Statement of Claim to the Defendant but the Defendant had changed its address without advising the Plaintiff. When the Plaintiff became aware of the change of address it immediately re-mailed the Statement of Claim. The Court validated this second mailing.
Service ex juris - In Rem action
McCain Produce Inc. v. Visser Potato Ltd., 2001 FCT 994
This was an ex parte motion by the Plaintiff for judgment in default of defence against the Defendant ship and her owners. The Defendants, including the ship, were apparently served in the Netherlands and a certificate of the Government of the Netherlands was offered in proof of service. Although the certificate did not indicate what was served or where the Prothonotary was prepared to assume the document served was the Statement of Claim. Nevertheless, the Prothonotary denied the motion on the grounds that there is no authority for the service on a ship outside of Canada nor for the service on a ship other than in an action in rem and the action was not styled in rem.
Personal Service on Solicitors as Business Agents
North Shore Health Region v. Cosmos Shipping Lines,  1 FC 583
This was an appeal of a decision by the Prothonotary in which the Prothonotary upheld personal service of a Statement of Claim on solicitors as business agents for the Defendant. The facts were that a crew member of one of the Defendant's vessels was seriously injured at Vancouver. The crew member was hospitalized. His medical bills were sent to the offices of the solicitors for the vessel's P&I Club. The solicitors paid four of the bills. Thereafter, no payments were made and the hospital commenced proceedings against the shipowner for payment of the ongoing medical costs pursuant to section 285 of the Canada Shipping Act. The hospital served the Defendant by delivering a copy of the Statement of Claim to the solicitors who had paid the bills. The Hospital argued that the service was valid pursuant to Rule 135 which authorizes personal service on an agent where the Defendant "in the ordinary course of business, enters into contracts or business transactions in Canada" through an agent in Canada and who actually used the agent in respect of the contract or transaction giving rise to the action. The Prothonotary and the appeal judge agreed and upheld the service. The appeal judge further held that, if the requirements of Rule 135 had not been complied with, he would have validated service pursuant to Rule 147.
Substitutional Service of in rem Statement of Claim and Warrant
458093 B.C. Ltd. v. The "Zomby Woof", 1998 CanLII 7231
It is generally thought that there can not be substitutional service on a ship of an in rem Statement of Claim or Warrant for arrest. However, there are exceptions to even the most steadfast rules, as this case demonstrates. We can do no better but to introduce this case using the words of Prothonotary Hargrave.
The Plaintiff applies, ex parte, for an order for substitutional service on the Defendant, Roger Hills, not an unusual application and one easily obtained on the material filed. However, the Plaintiff goes further and seeks an order for substitutional service of both the Statement of Claim and of the warrant for arrest on the Defendant vessel, for the "Zomby Woof" is apparently in the possession of a large and powerful animal, having short coarse hair, a broad head and pendant ears, namely a Rottweiler.
It seems the subject ship, a small fishing, vessel was on land on a trailer and was jealously guarded by a Rottweiler. Thus, access to the ship to serve the Statement of Claim or Warrant was impossible. Under these circumstances the Court ordered substitutional service by leaving copies in the Defendant's mailbox. The Prothonotary concluded: "In this way... the Sheriff will stand a sporting chance of staying beyond of the reach of the jaws of Mr. Hills' Rottweiler."
Service of Defective Statement of Claim
Reano v. The "Jennie W", 1997 CanLII 5907
This was an appeal from the dismissal of a motion to set aside a default judgement. The action was for wages and expenses. The action was commenced in May 1996. The Statement of Claim did not contain the required endorsement in Form 4. The Statement of Claim and Warrant of arrest were served on the ship on May 28, 1996. In August 1996 an Amended Statement of Claim including Form 4 was filed and served. Default judgment was obtained against the ship in October, 1996. A motion to set aside the default judgment was brought in March, 1997. The shipowner argued the default judgment should be set aside because the original Statement of Claim did not include the endorsement in Form 4. The Court of Appeal held that service of the defective Statement of Claim did not render the action a nullity or the arrest invalid since the defect had been remedied by the subsequent filing and serving of the Amended Statement of Claim. Further, the Court of Appeal held that there had been an unreasonable delay in filing the motion to set aside the default judgement. The Court of Appeal agreed with the Defendant, however, that in the particular circumstances of the case the claims for wages and expenses were claims for unliquidated damages rather than liquidated damages and the Court ordered that there be a reference to determine the amounts owing.
Service on Ship
Elders Grain Company Limited v. The "Ralph Misener", No. T-1836-90 (F.C.T.D.)
In this matter an In Rem Statement of Claim was served upon a ship by delivering a copy of the Statement of Claim to the Master on board the ship. The issue was whether such service was valid service under Rule 1002 which specifically provides that service on a ship is to be effected by attaching a copy of the Statement of Claim to the mast or some other conspicuous part of the ship. The Court reasoned that the Rules should be given a flexible, liberal interpretation and held that service on the Master was sufficient.
Service Ex Juris
Valmet Paper Machinery Inc. v. Hapag-Lloyd AG et.al., (December 23, 1996) Vancouver Reg. C960793
This was an application by the Defendant freight forwarder to set aside service ex juris of the Statement of Claim and for an order staying the action on the basis of a jurisdiction clause. On the first point the Court found that the Plaintiff had established a good arguable case that the Defendant's contractual obligation was as a common carrier and therefore that there was a breach of contract in British Columbia. Under the Rules of the Supreme Court of British Columbia service ex juris was allowed where there was a breach of contract committed within the province. On the jurisdiction clause issue the Court found that the clause did not apply as it related to forwarding activities and the Plaintiff had established a good arguable case that the Defendant was a carrier. Further, the Defendant's standard conditions, including the jurisdiction clause, did not apply to "bulky loads" and the Court held the cargo in question was a bulky load. The Court then went on to consider the various factors affecting forum conveniens and determined that British Columbia was an appropriate forum.
Extension of Time For Service
Companhia Siderurgica Nacional v. The "Imperial Confidence" , No.T-3083-94 (F.C.T.D.)
This was an ex parte motion by the Plaintiff to extend the time for service of the Statement of Claim. The Prothonotary extended the time for service in rem as the Defendant vessel had not been in the jurisdiction since the Statement of Claim was issued. However, the Court refused to extend the time for service in personam. The Prothonotary held that inadvertence or a mere slip in practice was not a sufficient reason to extend the time for service.
Service on Agent
Portbec Forest Products Ltd. v. The "Bosporus", No. T-556-92 (F.C.T.D.)
This case concerned Rule 310(2) of the Federal Court Rules which permits a non-resident to be served by serving an agent within the jurisdiction. The Plaintiff served the Defendant shipping line and shipowner by serving a local port agent who had been authorized to sign bills of lading and to attend to the Defendant ships husbandry. The Defendants led evidence to the effect that the local agent had only been used in respect of this one single charter party. The Court held that this was insufficient to support service under Rule 310.
Effect of Service on Ship
Key Marine Industries Ltd. v. The "Glen Coe", (1995), 92 F.T.R. 313, (F.C.T.
The Plaintiff in this matter applied for default judgment against the Defendants. The Plaintiff had effected service of the Statement of Claim on the ship but had not served the owners and no Statement of Defence had been filed. The filing of a defence would have amounted to an appearance in the action by the owners and would have converted the In Rem action into an In Personam action. The Court held that because the owners had not been served and had not filed a defence the Plaintiff was not entitled to judgment against them.