Shell Canada Energy v. General MPP Carriers

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.