Trawlercat Marine Inc. v. The “Amity”

The Defendant obtained plans from the Plaintiff for a 55′ catamaran which the Defendant intended to build. The Defendant decided not to proceed with the project and later retained a naval architect to design a 70′ catamaran. The Plaintiff subsequently commenced this in personam and in rem action alleging breach of a contract to execute a purchase and construction agreement and breach of copyright. The Plaintiff arrested the 70′ catamaran which was in the process of being built. The Defendant then brought this motion to strike the in rem portions of the Statement of Claim. The motion was allowed by the Prothonotary. The Prothonotary held that the copyright claim could not sound in rem and further held that the in rem contract claim against the 70′ catamaran could not be supported by section 22(2) (m) (necessaries) or (n) (contracts relating the repair or building of a ship) of the Federal Court Act since the ship did not exist at the material time.