Kremikovtzki Trade v Phoenix Bulk Carriers Ltd [2007] FCA 381 (4 December 2007) ADMIRALTY – cargo of coal arrested – whether arrested cargo was subject of the action – whether the charterer was beneficial owner of the cargo.
PRACTICE AND PROCEDURE – whether affidavit of Lead Warrant to arrest cargo complied with Rule 481(2) of Federal Court Rules.
Mazda Canada Inc v Mitsui OSK Lines Co Ltd [2007] FC 916 (14 September 2007) SHIPPING – salvage – whether cargo interest entitled to indemnity for contribution to salvage.
BILLS OF LADING – carriage of goods – where bill specified choice of law clause – reconciliation with s 46 of the Marine Liability Act – forum non conveniens.
Maritima de Ecologica SA de CV v The Ship “Maersk Defender” [2007] FCA 194 (18 May 2007) ARBITRATION – appellant entered into BIMCO time charter on undertaking of respondent to purchase vessel – vessel not purchased – appellant sought to invoke London arbitration clause against charterer.
ADMIRALTY – whether action could proceed in rem or in personam.
AGF MAT v Ocean Masters Inc [2007] NLCA 35 (16 May 2007) MARINE INSURANCE – insured vessel returning from voyage beyond limits of classification when destroyed by fire – whether insurer entitled to refuse indemnity on grounds of breach of warranty of legality.
Nordea Bank Norge ASA v The Ship “Kinguk” [2007] FC 434 (24 April 2007) ADMIRALITY AND MARITIME – arrest and sale of vessel - priority of satisfaction of claims – where creditor assumed obligations and expenses of admiralty marshall – calculation of interest rate on proceeds of sale.
Hansen v The Ship “Trinity” [2007] BCSC 225 (16 February 2007) ADMIRALTY AND MARITIME – action in rem – application to set aside warrant for arrest – failure to disclose relevant matters at ex parte hearing – whether prior refusal of Mareva injunction a relevant matter.
Nanaimo Harbour Link Corporation v Abakhan & Associates Inc [2007] BSCS 109 (29 January 2007) ADMIRALTY AND MARITIME – arrest and sale of vessel - priority of satisfaction of claims - nature of maritime lien as claim in rem – whether maritime law applies to purely intra-provincial sea travel – interrelation between maritime law and Bankruptcy and Insolvency Act 1985.
Addo v OT Africa Line, 2006 FC 1099 (15 September 2006) CARRIERS – negligence - damage to cargo in dropped container – whether there is Canadian jurisdiction over a maritime case – held, the court has jurisdiction. Defendant's activity of transferring the container while in transit from Montreal to Ghana is "integrally connected" to maritime matters and to Canada. F oreign location of a cause of action does not exclude the Federal Court from taking jurisdiction.
ADMIRALTY - personal property - arrest of defendant’s ship as security - plaintiff claims defendant failed to pay charges for services rendered - setting of bail for the release of ship - security ordinarily measured by plaintiff’s reasonably arguable best case capped at the value of the vessel - since court will not enquire into the merits of the claim at this stage, the reasonably arguable best case is what the plaintiff asserts – however, the court can assess the reasonableness of the plaintiff's claim - held, bail for the release of the ship set at one half of the amount of the plaintiff's claim plus costs, given allegations by defendant through counterclaim of misconduct on the part of the plaintiff that went unchallenged.
Magic Sportswear Corp. v. OT Africa Line Ltd, 2006 FCA 284 (23 August 2006) CARRIAGE OF GOODS – loss of cargo - conflict of laws – Hamburg Rules - s 46(1) of the Marine Liability Act (giving Canadian courts jurisdiction to hear claims by Canadian shippers, even where the contract for the carriage of goods provides for the adjudication or arbitration of claims in a place other than Canada) - whether dispute over cargo loss should be resolved in the High Court in London, as the contract provides, or in the Federal Court, which has jurisdiction under subsection 46(1) – held, s 46(1) does not remove the Court's discretion to decline to exercise its jurisdiction on the ground that it is not the more convenient forum. Foreign judgments and contractual foreign exclusive forum clauses must be taken into account in the forum non conveniens analysis. Shipper’s action in Federal Court should be stayed as the Federal Court is a less convenient forum than the High Court in London for this dispute.
CARRIAGE OF GOODS – conflict of laws – whether dispute over alleged cargo loss should be resolved in London, as the contract provides, or in the Federal Court, which has jurisdiction by virtue of s46(1) of Marine Liability Act – s46(1) does not remove the Court’s discretion to decline to exercise its jurisdiction on the ground that it is not the more convenient forum – trial judge wrong to conclude that the English decisions establishing English jurisdiction and the parties’ choice of forum were irrelevant to the forum non conveniens analysis – based on these considerations and the conclusion that the facts connecting the dispute to England were stronger than those connecting it to Canada, England was the more convenient forum.
MARINE INSURANCE – “all risks” policy – damage to goods – whether insured proved that the loss was caused by an insured peril – insufficient evidence of the weather conditions to conclude that the loss was caused by an external fortuitous occurrence as required to fall under an “all risks” policy.
MARINE INSURANCE – vessel lost propeller shaft – insurers appeal decision that they required to indemnify the respondents – insurers claim that respondent’s lack of due diligence caused the shaft to break – burden is on insurer to establish lack of due diligence – respondents had followed standard practice and regulations – appeal dismissed
Phoenix Bulk Carriers Ltd v "M/V Swift Fortune" (The), 2006 FCA 240 (26 June 2006) ADMIRALTY – maritime jurisdiction of the Federal Court – carriage of goods – a party's right to arrest property where the “subject of the action” is a charter-party and personal actions of defendants – whether there is required a nexus or causal relationship between action and ship and cargo arrested - held, leave to appeal to the Supreme Court of Canada granted given divergent views taken by panels of the Court on the issue.
FORUM NON CONVENIENS – attempt to strike out proceedings on basis that they were contrary to a choice of forum provision in the “supply agreement” and that the court was forum non conveniens – action stayed as plaintiff did not pursue alternative dispute resolution which was a prerequisite to legal proceedings under the agreement – plaintiff failed to establish a strong case for departing from the choice of forum provision – Nova Scotia was forum non conveniens as contract was signed, witnessed were located, and broader disputes were centred in Ontario.
BAIL – defendant sought order reducing amount of bail for release or to prevent the arrest of the in rem defendants – plaintiff is prima facie entitled to such security as will cover the amounts claimed in its statement of claim and affidavit to lead warrant – no reduction in bail as the plaintiff established that it had a prima face case and defendant failed to show that the plaintiff did not have a reasonably arguable case for the amounts.
MARINE INSURANCE – in initial proceedings the plaintiff alleged that the insurer improperly refused to pay insurance claim – now alleges that its solicitors were negligent in that action – security for costs ordered against plaintiff as defendant had arguable defence.
ADMIRALTY – action in rem – action in personam – dismissed because of undue delay in prosecuting action – unjustified non-compliance with orders of court
Mercury Launch & Tug Ltd v Texada Quarrying Ltd 2006 FC 464 (10 April 2006) NEGLIGENCE – transport agreement – bailee of barge – duty to provide safe berth – barge broke moorings and grounded resulting in damage –defendant dock owner did not have sufficient possession or control to be bailee – burden on plaintiff – defendant not negligent in not volunteering information about weather conditions in absence of inquiry by master.
GTI E&P Services Canada Inc v Stolt-Nielsen Transportation Group BV 2006 ABQB 240 (31 March 2006) BILL OF LADING – plaintiff sought summary judgment for loss of chemical due to leak in container resulting in dumping of chemical, summary judgment refused as were triable issues including – privity of contract – who carried risk of loss – whether seller/shipper was negligent in initial handling and packaging of goods – limitation of liability.
JP Morgan Chase Bank v Mystras Maritime Corporation 2006 FC 409 (29 March 2006) ADMIRALTY – action in rem – mortgage – priority of claims on sale of ship – priority of mortgage above supply of necessities in absence of lien –application of US law to necessities supplied in US.
Sumisho Reftech Co Ltd v Great Pride (Ship) 2006 FC 388 (27 March 2006) ADMIRALTY – stay of proceedings – forum non conveniens – action time-barred in Japan and China – action governed by Chinese law and witnesses in China – no connection to Canada – stay granted subject to defendant waiving time-bar.
Wappen-Reederei GMBH & CO. K.G. v Hyde Park (Ship), 2006 FC 150 (7 February 2006) COLLISION – voyage date recorder (‘black box’) – Transportation Accident Investigation and Safety Board (TSB) seized black box for investigation and refused to release a copy claiming privilege – plaintiff owner/operators sought original of the recordings from TSB and confidentiality of recordings – motion denied except for radio recordings – insufficient evidence that black box recordings provided necessary or even useful evidence.
Kremikovtzi Trade v Phoenix Bulk Carriers Ltd 2006 FCA 1 (6 January 2006) ADMIRALTY – action in rem – Federal Court Act 1985 ss 22, 43 –contract of affreightment – subject and cause of action – arrest of cargo – arrest of ship set aside as no "nexus or causal relationship" between action and the ship/cargo arrested – nexus between action and ship/cargo "merely incidental or fortuitous".
Pereira v Canada (Attorney General) 2005 FC 1011 (26 July 2005) Estai, seizure, foreign fishing vessel, high seas, legality of Canada’s boarding foreign vessel in international waters, reckless conduct of Canadian vessels, Northwest Atlantic Fisheries Organization, UNCLOS – Articles 3, 57. 87-90, straddling stock
Shtutman v Oceane Marine Shipping Inc 2005 FC 1471 (31 October 2005) cargo claim, container misdelivered or stolen, proof of loss, custody, exclusion or limitation of liability clause in bill of lading, Hague-Visby Rules Article III.8 and VII, freedom to contract before and after mandatory application of Hague-Visby Rules
1340232 Ontario Inc. v St. Lawrence Seaway Management Corp 2004 FC 209 (09 Feb 2004) NEGLIGENCE – economic loss – duty of care – action for business losses resulting from the closure of bridge due to alleged negligence of defendant – defendant lowered bridge onto a vessel causing damage to the bridge – merchant in nearby town lost business.
Isen v Simms 2004 FC 227 (13 February 2004) MARITIME JURISDICTION – personal injury – limitation of liability – Canada Shipping Act ss 577, 581 – ship less than 300 tons – whether incident occurring when ship on land sufficiently connected with maritime jurisdiction – consideration of phrase ‘involving a ship’.
Berhad v Canada 2004 FC 501 (05 April 2004) SHIPPING AND NAVIGATION – safety at sea – Port State Control – Memorandum of Understanding on Port State Control in the Asia-Pacific – SOLAS – negligent detention of Malaysian registered vessel.
Brooks Aviation Inc. v Boeing SB-17G 2004 FC 710; [2005] 1 FC 352 (17 May 2004) MARITIME LAW – salvage – action in rem against historic wreck – Canada Shipping Act s 2(d) – whether in possession – whether had maritime lien for salvage services – whether entitled to a salvage award or be declared the aircraft's sole owner – plaintiff not salvor in possession nor entitled to maritime lien as had not undertaken activities necessary to place it in possession – acknowledged that plaintiff first finder, could protect interests by injunction – salvor to deliver wreck to Receiver of Wrecks.
Royal Bank of Scotland v Golden Trinity (Ship) 2004 FC 795 (31 May 2004) MARITIME LAW – priorities among competing claims against vessels – supply of bunkers – choice of law clause – maritime lien – sister ship arrest jurisdiction – Federal Court Act s 43(8) – whether same beneficial owner – look behind registered ownership – forbearance of mortgagee did not warrant equitable reordering of priorities so that necessaries suppliers outrank mortgagee.
Lloyd's Register North America Inc. v Dalziel 2004 FC 822 (09 June 2004) MARITIME JURISDICTION – review of jurisdiction of an adjudicator under Canada Labour Code – claim of constructive dismissal by marine surveyor against employer, Lloyd’s – whether adjudicator had jurisdiction under federal employment law as Lloyd’s were within the exceptional class of activities that fall under federal jurisdiction as being integral to the federally regulated area of shipping – role of classification societies includes activities delegated by federal regulatory authorities.
Magic Sportswear Corp. v OT Africa Line Ltd 2004 FC 1165; [2005] 2 FC 236 (23 August 2004) MARITIME JURISDICTION – carriage of goods – partial loss of cargo – bill of lading forum selection clause – Marine Liability Act s 46(1) – forum non conveniens – whether the plaintiffs entitled to have their cargo claim adjudicated by one of Federal Court's prothonotaries.
Re Otello Manship (Ship) 2004 FC 1181 (27 August 2004) Review of prothonotary’s decision setting the amount of security for release of vessel from arrest – defendant had contracted to sell vessel then extended delivery date, failed to deliver the vessel and encumbered the vessel with a charterparty that prevented the plaintiff taking possession of the vessel – prothonotary’s bail decision upheld.
TJ Inspection Services v Halifax Shipyards 2004 NSSC 181 (20 September 2004) LIEN – whether a component of an offshore gas production platform and/or the land upon which it was constructed can be liened under Mechanics’ Lien Act RS c 277 ( Nova Scotia) – whether production platform can be characterised as a vessel or an erection.
Forestex Management Corp v Lloyd's 2004 FC 1303 (22 September 2004) MARINE INSURANCE – grounding and loss of ship – constructive total loss – hull and machinery underwriters denied coverage for breach of trading limits – action on hull dismissed for delay – plaintiff began new action alleging bad faith on part of the insurers – whether there is a reasonable cause of action for bad faith where no initial finding of liability has been made.
Foresight Shipping Co v Union of India 2004 FC 1501 (26 October 2004) ARBITRATION – whether applicant entitled to seize and sell a ship of state-owned company in satisfaction of an arbitral award it obtained against the Union of India – corporate personality – conflict of laws – whether under Indian law the state-owned company was the alter ego or instrumentality of India – whether circumstances warrant piercing of corporate veil.
Kusugak v Northern Transportation Co 2004 FC 1696 (03 December 2004) MARITIME JURISDICTION – whether maritime jurisdiction invoked by claim for loss of life arising from the sinking of vessel – failure to employ a system for responding to maritime emergencies – whether an existing body of federal law essential to the disposition of the claim – claim governed by the common law of negligence not maritime law – fact that claim involved a ship was insufficient to give rise to a claim in maritime law in absence of allegation that defendants had any involvement with or responsibility for the operation, control, or possession of the ship.
Dongnam Oil & Fats Co v Chemex Ltd 2004 FC 1732 (10 December 2004) CHARTERPARTY (time and voyage) – amended Vegoilvoy form, with arbitration in London – Commercial Arbitration Code, Article 8 – damage to cargo – cargo owner claimed against head charterer and owner of vessel – head charter and voyage charter provided for arbitration in London – arbitration provisions not overridden by Marine Liability Act s 46 – whether arbitration agreements effective.
Gilling v Cox 2004 FC 1743 (15 December 2004) ADMIRALTY – bill of sale – conversion – sale of yacht to third party purportedly pursuant to a power of attorney – declaration that plaintiff the owner of vessel and that sale void – plaintiff negotiated a settlement with third party purchaser to recover yacht – sale made by defendant in lieu of monies owed by plaintiff – entitlement of defendant to damages.
2003
Friesen v Norwegian Cruise Lines Inc 2003 BCSC 256 (09 January 2003) ADMIRALTY – personal injury – claim against owners of vessel – forum non conveniens – ticket contained clause conferring exclusive jurisdiction on Florida courts – Athens Convention inapplicable at time of accident – whether reasonable steps to alert plaintiff of clause on ticket – balance of convenience led to accepting jurisdiction.
Secunda Marine Services Ltd v Canada (Transport Canada Marine Safety) 2003 NSSC 2 (09 January 2003) Judicial review of a decision by Transport Canada steamship inspectors not to issue a letter of compliance confirming that the vessel met the Canadian Coast Guard Standards Respecting Standby Vessels – whether provincial superior court had jurisdiction to consider the application – inspectors acting under parallel federal and provincial legislation.
Canada v The Delta Pride 2003 FCT 11 (13 January 2003) ADMIRALTY – damage to government-owned floating breakwater due to alleged negligent operation of vessel – vessel navigating with assistance of two tugs, one of which contacted and damaged the breakwater – vessel owner sought to pass liability argued liability to tug owner – presumption that the tug is the servant of the tow and that the tow is in control of tug – quantum of damages.
Nestle Canada Inc v The Viljandi 2003 FCT 28 (14 January 2003) STAY OF PROCEEDINGS – bill of lading specified US jurisdiction – Marine Liability Act s 46(1) – Canadian proceedings continued.
NHM International Inc v The All Risks 2003 FCT 53 (21 January 2003) ADMIRALTY – action in rem – bail – consideration of security – shipbuilding contract – plaintiff mortgagee entered into possession and had vessel arrested after delays and alleged deficiencies in construction – bail sought by defendant was exorbitant, oppressive and abusive.
Pan Ocean Shipping Co Ltd v The Tuloma 2003 FCT 56 (21 January 2003) CHARTERPARTY (time) – failure make the ship fit for required service – ship not permitted to discharge its cargo in US – plaintiff charterer exposed to claims for physical damage to cargo and possible claims for late delivery/loss of market – quantum of security for release of vessel from arrest.
Timberwest Forest Ltd v Gearbulk Pool Ltd 2003 BCCA 39 (21 January 2003) MARINE INSURANCE – bill of lading – cargo damage – whether bills of lading stated with sufficient precision that the cargo would be carried on deck so as to preclude application of Hague-Visby Rules, Article 3 – whether cargo fell within Hague-Visby definition of ‘goods’, Article 1(c).
Early Recovered Resources Inc v Gulf Log Salvage Co-operative Association 2003 FCA 35 (24 January 2003) MARINE LAW – marine log salvage – constitutionality of Part IX of the British Columbia Forest Act and regulations made thereunder – whether salvage is a matter of exclusive federal jurisdiction – International Convention on Salvage 1989 as incorporated in Canada Shipping Act – definition of salvage – whether the provincial legislation had a sufficient connection to shipping.
Strachan v The Constant Craving 2003 FCT 86 (28 January 2003) MARINE INSURANCE – negligence – claim for damage to vessel resulting from explosion and fire aboard another vessel – damages – inconvenience or loss of use – collateral benefit – ‘private insurance exception’ to the collateral benefits rule – insurance proceeds not considered a collateral benefit.
Dixon v Leggat [2003] 169 OAC 133 (06 March 2003) ADMIRALTY – collision – motor boat collided with small island, personal injury and death, operator liable but limited his liability under the Canada Shipping Act, trial judge’s finding that the owner was also liable due to s566 of Canada Shipping Act was incorrect as s566 has no application to accidents involving only one vessel, further s566 does not impose liability but makes liability joint and several amongst owners of a vessel where it had been already found
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Continental Insurance Co v Almassa International Inc(2003) 46 CCLI 3d 206 (24 March 2003) MARINE INSURANCE – marine open cargo policy –cargo damaged due to unexpected delay and poor ventilation – court found that damage was caused by failure to ventilate and so did not fall within an exclusion for damage caused by delay – in the alternative found concurrent causes – where insurance covers one concurrent cause and other cause excluded the loss is covered unless the policy expressly provided to the contrary – punitive damages – bad faith.
Norgate Marine Management Inc. v Conti Will (Ship) 2003 FCT 444 (16 April 2003) ADMIRALTY – bail and security – determination of amount of performance bond – bond equal to secured party’s reasonably arguable best case – components of plaintiff's claim were only estimates – plaintiff’s evidence incomplete.
North Coast Sea Products Ltd v ING Insurance Co of Canada 2003 BCSC 592 (17 April 2003) MARINE INSURANCE – hull and machinery policy – policy covered equipment used to grow oysters but not the oysters – equipment and oysters sank to bottom of bay – divers retrieved equipment and oysters with no additional effort – sue and labour clause – whether plaintiff’s recovery of sue and labor expenses should be calculated on pro rata basis comparing values of the insured equipment and uninsured oysters – restriction in policy applied only to under-insured losses not uninsured losses therefore insured entitled to sue and labor expenses.
Island Tug & Barge Ltd v Communication, Energy and Paperworkers Union 2003 BCCA 247 (30 April 2003) JURISDICTION – appellant sought injunction to restrain industrial action that affected its business which involved the operation of tugs and barges – appellants argued their business was a federal undertaking to which provincial labor relations legislation had no application – exclusive federal jurisdiction over navigation and shipping did not extend to undertakings carried on entirely within the boundaries of a single province, except insofar as the actual shipping aspect of the operation was concerned.
2002
Atlantic Cement Carriers Ltd v Atlantic Towing Ltd 2002 FCT 761 (09 July 2002) action by owner of barge against owner of tug arising from loss of barge and cargo, application for a stay of the action, clause in governing Towcon agreement provided that disputes were to be referred to London where the tug owners had recently filed a claim, s46 of Marine Liability Act held not to apply as it applied to contracts for the carriage of goods by water and the Towcon agreement was a contract for towage, no strong reasons to depart from parties' contractual choice of jurisdiction, applicant’s had genuine desire for trial in London evidenced by commencement of proceedings
Champion International Corp v The Sabina 2002 FCT 1122 (06 November 2002) contract for carriage of goods, all commercial terms apart from lay days and precise volume of cargo had been agreed, before remaining points resolved the defendant's agents suspended negotiations as they had been offered a time charter at a rate too good to refuse, plaintiff obliged to charter a substitute vessel at a higher freight rate, whether negotiations between plaintiff cargo interests and defendant vessel interests resulted in a concluded fixture for the carriage of cargo, whether meeting of the minds on all significant terms, lay days and cargo volume terms not considered significant, defendant's agent characterized them as ‘loose ends’, defendant negotiating with third party and plaintiff at the same time without informing the plaintiff's agents
Conohan v The Cooperators 2002 FCA 60; [2002] 3 FC 421 (11 February 2002) marine insurance, collision, claim by owner of fishing vessel against insurer of other fishing vessel, owner of other vessel admitted liability and assigned to plaintiff his rights against insurers, insurer denied liability, clause in policy provided that the insured's liability was invoked if the vessel collided with another vessel and as a consequence the insured had become liable to pay and did pay damages, ordinary meaning of the words required that payment first be made to the third party as a condition precedent to recovery under the policy, as the insured had not paid the claim the insurer was not obliged to do so
Cyber Sea Technologies, Inc. v Underwater Harvester Remotely Operated 2002 FCT 794; [2003] 1 FC 569 (16 July 2002) whether Federal Court had jurisdiction over a dispute between builder of a submersible logging device and its owner, whether the claim was within the Federal Court's jurisdiction over navigation and shipping, dependant upon whether the submersible fell within the definition of a ‘ship’ in s2 of the Federal Court Act, definition very broad and seemingly encompassed anything used on or in the water, court concluded the submersible was in all likelihood a ship but left open the possibility for this issue to be reconsidered at trial
Early Recovered Resources Inc. v Gulf Log Salvage Cooperative Association 2002 FCT 184; [2002] 4 FC 626 (20 February 2002) plaintiff brought action against inter alia the provincial government seeking compensation for salvage of certain logs, government moved for summary judgment on the basis that the claim was not within Canadian maritime law and was thus outside Federal Court's jurisdiction, International Convention on Salvage 1989 Articles 1 & 19, court concluded that federal parliament had legislated so as to extend the concept of maritime salvage to property such as logs and booms of logs, dismissed the government’s application, the finding of the applicability of the federal legislation excluded the application of provincial legislation on the subject of log salvage
Finansbanken ASA v The GTS Katie 2002 FCT 73 (22 January 2002), affirmed, 2002 FCT 339 whether the ship's plans and manuals and drawings were subject to mortgage security, ship owner purported to transfer this property to a necessaries supplier to procure the supply of necessaries, mortgagees contested the ability of the ship owner to alienate the ship's documents without their consent, relevant mortgage clause purported to charge all the vessel's appurtenances, ‘appurtenances’ included whatever can be regarded as necessary to the proper operation of the ship, documents were essential to the operation of the ship and as such were charged by the vessel mortgages
Finansbanken ASA v The GTS Katie 2002 FCT 74 (22 January 2002) claimant who provided vessel owner with funds to pay master and crew sought to have his claim subrogated to the crew wage lien so that he could recover from the vessel's proceeds of sale before the mortgagees, deficiencies in evidence supporting the claimant’s position, conflict of laws, US law did not govern the assignment or subrogation of the crew lien as the payment took place in Canada when the ship was in Canadian territory, fact that the transaction was between two Americans not particularly relevant to the conflict of laws analysis, under Canadian law a wage lien cannot be assigned or subrogated unless the court has first given its consent barring exceptional circumstances, claim failed
Global Enterprises International Inc v The Aquarius 2002 FCT 150 (08 February 2002) whether plaintiff’s costs and expenses should be afforded the status of marshal's expenses and therefore be paid with priority from the proceeds of sale of a number of vessels, plaintiff arranged berthing for the ships not as an agent of the vessel owners but by contracting directly as a principal with the operator of the facilities and then contracting separately with vessel owners, amount charged included the cost to the plaintiff plus a mark up for profit, profit component could not be characterized as its reasonable costs and expenses, only the amount the plaintiff had to pay to the operator of the berth facilities were given priority as marshal’s expenses
Incremona-Salerno Marmi Affini Siciliani (ISMAS) snc v The Castor 2002 FCA 479; [2003] 3 FC 220 (02 December 2002) action for cargo damage, defendant filed an application for a stay pursuant to a clause in the bill of lading referring all disputes to the courts of Hamburg, relevant events all pre-dated the entry into force of the Marine Liability Act, s46 provides that a claimant may institute proceedings in Canada in certain circumstances despite a clause referring disputes to foreign courts, as s46 was not in force when the action was commenced it could not be applied to reach into the past and alter the parties’ rights
Kirgan Holding SA v The Panamax Leader 2002 FCT 1235 (29 November 2002) plaintiff arrested vessel claiming unpaid accounts for the supply of bunkers, fuel was supplied at therequest of the agent of bareboat charterers, both charterer and agent were bankrupt, owners of vessel disputed their liability and the plaintiff’s right to arrest the vessel on the basis that neither the charterer nor its agent was acting upon owner's authority in contracting for bunkers, plaintiff relied on US law which provides that a necessaries supplier has a maritime lien against a vessel and that a charterer or its agent is presumed to have authority to contract on the credit of the vessel unless the supplier has actual notice of lack of authority, whether US applies, no connections between the parties or the bunkers and the US, however the contract pursuant to which the bunkers were supplied provided it would be governed by US law, court deferred to the contractual choice of law provision in the absence of strong reasons for departing from it
Mariana Maritime SA v Stella Jones Inc 2002 FCA 215 (24 May 2002) shipowners sought to stay cargo claim and refer it to arbitration in London, prior to shipment a booking note was signed by the parties which provided it would prevail over previous arrangements but would be superseded by bill of lading, cargo loaded and bill of lading issued in standard Conline form with the addition of an arbitration clause as an amendment, some of cargo not accepted at destination so shipowners agreed to return it to Canada, agreement was an addendum to the booking note, fire on return voyage resulted in loss of cargo, held that no arbitration agreement between the parties, neither the booking note nor the standard Conline bill of lading contained an arbitration clause, the arbitration clause that was added to the standard Conline bill of lading had not been agreed to by the parties and did not form part of the contract
Normandeau v Lévesque Estate 2002 FCT 369 (05 April 2002) fisherman killed in wreck, action by fisherman’s parents against estate of vessel’s owner who was the fisherman’s employer, defendants moved for summary judgement on basis that action barred by provincial legislation, plaintiff’s response was that Canadian maritime law is a body of federal law leaving no scope for the application of provincial legislation, court held that this was not an issue to be decided on an application for summary judgment but indicated that provincial legislation should be read so as not to impede the full application of Canadian maritime law
Pacifica Papers Inc v The Haida Monarch 2002 FCT 676 (14 June 2002) marine insurance, loss of insured cargo, action against vessel and owners who defended on the basis that they were ‘insureds’ under the applicable policy, contract of carriage provided that defendant was to maintain insurance on the vessel, plaintiff was to maintain all risk insurance on the cargo, each party's insurance policy was to contain an express waiver of subrogation with respect to the other party, except that any waiver of subrogation in favour of vessel interests was not to apply to loss or damage caused by unseaworthiness, cargo policy named as insured the plaintiff and others for whom they had instructions to insure, policy also waived subrogation rights against the insured and stipulated that between the insurers and the insured the seaworthiness of the vessel was admitted, held that none of these terms amounted to an instruction to the plaintiff to insure the defendants, the limitation on the waiver of subrogation relating to unseaworthiness would have precluded naming the defendants as insureds, but question of whether defendants were ‘insureds’ too complex for summary judgment
Rainbow Technicoloured Wood Veneer Ltd v Guardian Insurance Co of Canada 2002 FCA 28 (21 January 2002) marine insurance, wood working machine damaged during transport, damage resulted from inadequate securing of the machine inside the container, securing had been performed by a third party contracted by manufacturer of machine at the manufacturer's premises prior to the container being dispatched to port, policy governed by the Institute Cargo Clauses (A) which exclude loss caused by insufficient packing performed prior to the attachment of the insurance, claim failed
Richardson International Ltd v The Mys Chikhacheva 2002 FCA 97; [2002] 4 FC 80 (22 March 2002) plaintiff company incorporated in Washington State, entered into an agreement pursuant to which it loaned money to a Russian corporation for refitting a factory processing ship and providing essentials to that vessel and two trawlers, plaintiff to have the exclusive right to market the products from the vessels until the debt repaid and was granted a mortgage on the factory processing ship, plaintiff also supplied fuel and provisions to the vessels and paid certain salaries and travel expenses, Russian corporation breached agreement by selling the production to third parties, Russian corporation entered into bankruptcy in Russia, plaintiff arrested one of trawlers in BC, this action defended by the true owner of the vessel, whether the defendant vessel was liable in rem for the plaintiff’s claims which would require application of a maritime lien under US laws, determination of proper law governing the claim, trial judge found that the claim was governed by US maritime law and that such laws established an entitlement to a maritime lien, held on appeal that it was appropriate for the trial judge to have considered the totality of the contractual relationships between the parties but even if the marketing contract was considered in isolation US law was the system of law with which it had the closest and most substantial connection
Samuel Son & Co Ltd v The Kapitonas Gudin 2002 FCT 101 (29 January 2002) action for cargo damage, cargo wet and some quantity of water was observed in ship's holds, plaintiff alleged the damage caused by seawater ingress to the vessel's holds, defendants argued the wetting of the cargo either occurred prior to loading or as a result of condensation during carriage, plaintiff has initial burden to demonstrate the goods were tendered for loading in good condition, clean bill of lading is generally prima facie proof of this, bill of lading was claused ‘Rust stained. Wet before shipment’, plaintiff nevertheless established the defendants’ were negligent and that such negligence was the proximate cause of the damage through survey evidence, defendant argued that as the cargo was already damaged any further damage caused by carrier's negligence did not cause the plaintiff any loss, this argument was rejected as where loss is caused by the concurrent causative effects of an excepted and a non-excepted peril the carrier remains liable for the entire loss unless it can prove that certain severable components of the loss were caused by the excepted peril alone
Saskatchewan Wheat Pool v Armonikos Corporation Ltd 2002 FCA 444 (13 November 2002) appellant applied to stay trial decision pending the outcome of the appeal so as to stop the respondent from pursuing London arbitration proceedings, respondent had sought a declaration that the ship was chartered to the appellant and that the charter party contained a London arbitration clause, trial judge ruled in favour of respondent and directed counsel to prepare a draft judgment, judgment was not prepared and the respondent instituted London arbitration proceedings, appellant objected on the basis that it was premature to institute arbitration proceedings before judgment was filed, serious issue to be tried, appellant would suffer irreparable harm if stay not granted, balance of convenience favoured granting the stay, appellant prepared to post security
Striebel v The Chairman 2002 FCT 925 (30 August 2002), affirmed, 2002 FCT 995 application to set bail for release of yacht, claim had been brought against vessel by builders after plaintiff owners terminated building contract, builder estimated its profit on the payments remaining due to be $1.8 million, to cover its claim plus interest and costs the builders sought $2 million in security, generally bail is to cover the secured party's reasonably arguable best case including interests and costs limited by the value of the vessel, in light of the vessel owners defence that the time and costs expended in completing the vessel were substantially more than suggested by the builder the court was satisfied that the builder's claim would not succeed in the amount presented, the security sought was therefore oppressive, sufficient security was $1 million
Trawlercat Marine Inc v The Amity 2002 FCT 1181; (2002), 22 C.P.R. (4th) 515 (13 November 2002) plaintiffs commenced action in rem against a partially completed catamaran and action in personam against her owner, claimed breach of a contract to execute a construction agreement, also claimed breach of copyright and related intellectual property remedies, defendants moved to strike the in rem proceedings, no basis for this proceeding to be brought in rem, plans for a ship that did not yet exist could not be characterized as goods or materials or services for the operation or maintenance of a ship, plaintiff's contractual claim was a claim alleging breach of an agreement to enter into a construction contract and not breach of a construction contract itself, in rem action struck out
2001
Balcan Ehf v The Atlas 2001 FCT 1328 (04 December 2001) plaintiff arrested vessel asserting a claim to reimbursement for supply of necessaries, defendant vessel interests applied to strike out the arrest on the basis that the claim did not fall within the court's in rem jurisdiction, supply of necessaries actually made by third party suppliers, plaintiff was the ship's manager and seemed to allege that it had liability to the third party suppliers, as plaintiff neither supplied nor payed for the necessaries and as none of the suppliers had indicated they would sue the plaintiff a necessaries claim could not be established
Dryburgh v Oak Bay Marina (1992) Ltd 2001 FCT 671 (18 June 2001) plaintiff's yacht damaged at marina when dock broke loose and drifted aground, clause in mooring contract purported to protect marina from liability for its negligence or that of its servants or agents, question whether this covered marina’s employee who designed and constructed the dock, clause made no mention of its employees, despite the absence of privity the court held that an employee can benefit from a limitation of liability clause where the clause expressly or impliedly extends the benefit to employees and the employee was acting in the course of his/her employment and performing the various services provided for in the contract when the loss occurred, unless there is a clear intention not to cover employees their cover is implied
Ecu-Line NV v ZI Pompey Industrie (2001) 209 FTR 305 (25 January 2001) claim for cargo damage, defendant sought stay of action in favour of litigation in Antwerp pursuant to jurisdiction clause in bill of lading, bill of lading provided for carriage by sea from Antwerp to Seattle, plaintiff had emphasized the delicacy of the cargo and that it could not travel by rail, defendant transported cargo by sea to Montreal but by rail from there to Seattle, constituted an unreasonable deviation, carrier therefore lost the protection of the contract of carriage including the jurisdiction clause, motion for a stay denied, on appeal the court considered whether the trial judge had given sufficient weight to all relevant considerations, trial judge had considered the English decision The Eleftheria, rejected the appellant's submission that The Eleftheria required the dispute to be dealt with by the courts of the jurisdiction chosen by the parties, judge had taken into account all relevant considerations, appeal dismissed
Gilling v Canada 2001 FCT 595 (06 June 2001) plaintiff sought recognition of right to possession and ownership of vessel, concurrent actions in Canada and Turkey, Turkish court dismissed action due to proceedings in Canada, that decision subject to appeal, defendant was registered owner of vessel, defendant sought imposition of a condition that plaintiff could continue Canadian proceedings only if he withdrew his action in Turkey and bring to an end the seizure of the vessel in that country, Federal Court has jurisdiction to impose such a condition, condition would not adversely affect the plaintiff respecting the substantive issue to be decided or jeopardize the Canadian court's authority over the vessel, no legitimate reason for maintaining the Turkish proceeding as Canada the forum conveniens, court imposed the condition
Global Enterprises International Inc v The Acquarius 2001 FCT 605 (06 June 2001) vessel and two sister ships arrested by necessaries supplier, Polish trustee in bankruptcy for the owners of the vessels sought an extension of time to appeal and a stay of the sale, principal basis for the motion was that trustee was negotiating with the vessel’s creditors and needed time to bring negotiations to fruition, court reviewed the relevant factors in considering whether to grant an extension – applicant must show a continuing intention to pursue the appeal, that the appeal has merit, that no prejudice against the respondent arises from the delay, and that a reasonable explanation for the delay exists – none of which were assisted by the intention to pursue negotiations with the ship's creditors, trustee failed to make a case for either an extension of time or a stay of the sale
Holt Cargo Systems Inc v ABC Containerline NV 2001 SCC 90; [2001] 3 SCR 907;207 DLR (4 th) 577 (20 December 2001) owner of vessel a Belgian company that declared bankrupt in Antwerp, prior to this the vessel was arrested under a Federal Court warrant in the plaintiff's action to recover outstanding charges for stevedoring provided in the US, vessel sold and proceeds paid into court, Quebec Superior Court recognized the Antwerp bankruptcy judgment and granted an order that proceeds of sale be turned over to the trustees appointed by Belgian court, trustees applied to Federal Court to have this order given effect, court rejected the trustees' position that it was obliged to follow the Quebec order, Supreme Court confirmed that the Federal Court did not lose jurisdiction due to the bankruptcy or the orders of the Quebec court as it was dealing with an in rem claim against a ship, considered whether the Federal Court judge had considered the relevant factors in adjudicating the trustees' application for a stay, whilst there was a lack of substantive connection between dispute and Canada this is common to ships engaged in international maritime commerce, not forum shopping to proceed in court of country where the vessel arrested, maritime lien status to which plaintiff entitled was a legitimate juridical advantage appropriate for the trial judge to take into account in deciding the stay application, trial judge did not refuse to consider any major element appropriate for the determination of the case
Imperial Oil Ltd v Petromar Inc 2001 FCA 391; [2002] 3 FC 190; [2001] 209 DLR (4th) 158 (14 December 2001) dispute arising from supply of marine lubricants to two vessels, no contractual relationship between unpaid supplier and owner of vessels, various American contracts between demise charterers and suppliers, no in rem claim against the vessels under Canadian law, US law would confer a maritime lien against the vessels, which system of law has the closest and most real connection with the claim, in overruling trial decision the court noted many factors linking the transactions to Canada, most importantly the supplies were made in Canada where the vessels were based and traded, Canada benefited more from lubricants than the US, Canadian law therefore applicable so no maritime lien against the vessels
James Fisher & Sons Plc v Pegasus Lines Ltd 2001 FCT 489 (15 May 2001) examination in aid of execution, Mr Karathanos was the principal of Amican who were agents for the judgment debtor Pegasus, Mr Karathanos was ordered to attend examination as an officer of Pegasus, he sought to be relieved of this obligation, court reconsidered whether Mr Karathanos was an officer of Pegasus, that conclusion was based on evidence that Mr Karathanos was responsible for the incorporation of Pegasus and that Amican were the managers of Pegasus and that Amican or Mr Karathanos continued to act in the interests of Pegasus, evidence confirmed this and the court inferred that Mr Karathanos was the directing mind of Pegasus in the absence of any evidence adduced by him which indicated that someone else was the directing mind, Mr Karathanos obliged to reattend examination
Logistec Stevedoring Inc v Amican Navigation Inc 2001 FCT 681 (21 June 2001) action to recover on invoices for stevedoring services, vessels time chartered by Pegasus, Amican was Pegasus’ general agent as well as agent for other shipping lines, default judgement against Pegasus, whether Amican personally liable for claim, written communication on Amican’s letterhead, bottom of page displayed words ‘general agents, Pegasus Lines Ltd. S.A.’ but Amican signed without reference to agency relationship, Amican represented it had been awarded the contract for the transport of the cargo without reference to Pegasus, Amican representatives had not disclosed in oral communications that it was acting solely as agent, Logistec assumed Amican contracting on own behalf, otherwise would have made inquiries regarding Pegasus’ credit worthiness, court held Amican contracted as principal not agent, even if had contracted as agent it remained personally liable for failing to disclose it was acting only as an agent, court rejected Amican’s objections to the invoices
Mediterranean Shipping Co SA Geneva v Sipco Inc 2001 FCT 1046; [2002] 3 FC 125 (25 September 2001) plaintiff brought action for recovery of unpaid ocean freight for the carriage of nine containers, defendant counter-claimed and claimed set-off in relation to seven containers one of which did not arrive as scheduled, defendant claimed costs and damages caused by the delay, court held that the defendant cannot raise any claim for losses attributed to the breach of a contract of carriage by way of set-off unless such set-off is provided for in the contract, bill of lading expressly provided there was no right of set-off, counter-claim not time barred by Hague-Visby Rules as it was commenced within one year of the delivery of the delayed seventh container, although the plaintiff was negligent and had breached its contractual commitments the counter-claim was dismissed as the defendant had not established that its alleged losses were suffered as a result of the last container's late arrival
Nedship Bank Nv v The Zoodotis 2001 FCT 706 (26 June 2001) plaintiff sought order requiring supplier of bunker fuel to sister ships of defendant vessel to post security for costs, supplier was a claimant against the proceeds of sale of the vessel whose entitlements were to be determined by a priorities hearing, plaintiff argued the supplier was an English company with insufficient assets in Canada to pay an award of costs made against it, court refused to make order as the supplier was not a party but merely a claimant against the proceeds of sale, noted that if an in rem claimant sought the right to substantive involvement in a proceeding that claimant might be joined as a defendant upon the posting of adequate security, no substantial involvement in this case
Neves v The Kristina Logos 2001 FCT 1034 (20 September 2001) vessel seized for violations of Canadian fisheries law, order for forfeiture made but then overturned which was then appealed, also a civil action against the vessel by claimant with mortgage interest and by part-owners of vessel, Crown granted intervenor status and applied to have vessel sold to bring an end to its maintenance and preservation costs, competing claims against proceeds from sale, Crown entitled to first priority for its costs arising from the sale of the ship, mortgage ranked next in priority with interest recoverable from the date of mortgagor's default, none of the other claims gave rise to a maritime lien, but Crown was entitled to recovery of costs incurred for the care of the crew, Crown could also recover its forfeiture award if it was reinstated by the Supreme Court as well as fines as unsecured claims, Crown not entitled to recover its care and preservation costs as these expenses did not arise as a result of the arrest of the ship under the Federal Court process but by virtue of seizure of the vessel under Fisheries Act and then of the Crown's possession as owner of the ship before that order was reversed, balance of the fund was to be split 49% to part-owners and rest to registered owners
Porto Seguro Companhia de Seguros Gerais v Belcan SA (2001) 200 FTR 44 (31 January 2001) plaintiff the insurer of cargo on board ‘Beograd’, sought to recover from owners of ‘Federal Danube’ the various amounts it had paid out for cargo damage resulting from a collision between it and the ‘Beograd’, previous case held that the negligent operation of the ‘Beograd’ caused the collision, court did not accept there was contributory negligence by ‘Federal Danube’, whilst the ‘Federal Danube’ failed to report the exact position of her anchorage to traffic authorities this did not contribute to the collision because the master of the ‘Beograd’ knew where it was, court rejected assertion that ‘Federal Danube’ did not have permission to heave its anchor and concluded she was not yet under-way as defined in the Collision Regulations, decision from previous trial reinstated
Porto Seguro Companhia de Seguros Gerais v Belcan SA 2001 FCT 1181 (31 October 2001) decision on costs, collision action, original trial decision was overturned by Supreme Court – trial judge erred in excluding expert evidence on issues of navigation and seamanship where assessors had been appointed by the court, this exclusionary rule should no longer be followed, Supreme Court awarded plaintiff costs of the appeals in both the Supreme Court and Federal Court of Appeal, action retried, plaintiff's action again dismissed with costs, how the costs of the first trial to be disposed of, defendants argued the general rule is that the costs of the first trial will follow the results of the new trial unless it was necessitated by the fault of a particular party, plaintiff argued that the exception applied as the new trial resulted from the decision of the defendants to oppose the introduction of expert evidence, court concluded this situation did not fall within the limited exception, it was proper for counsel for the defendants to have applied to exclude expert evidence as this was consistent with then prevailing jurisprudence, application did not lead to an aborted trial
Richardson International Ltd v The Mys Chikhacheva 2001 FCT 13; [2001] 3 FC 41 (02 February 2001) plaintiff company incorporated in Washington State, entered into agreement pursuant to which it loaned money to a Russian corporation for refitting a factory processing ship and providing essentials to that vessel and two trawlers, plaintiff to have the exclusive right to market products from the three vessels until debt repaid and was granted a mortgage on the factory processing ship, plaintiff also supplied fuel and provisions and paid certain salaries and travel expenses, Russian corporation breached agreement by selling the production to third parties, Russian corporation entered into bankruptcy in Russia, plaintiff arrested one of the trawlers in BC, this action defended by true owner of the vessel, whether defendant vessel was liable in rem for plaintiff’s claims which would require application of a maritime lien under the laws of the US, determination of the proper law governing the claim, court concluded that the parties had specifically chosen the law of Washington to govern their relationship and that the constellation of contracts governing the commercial relations had the closest and most real connection to Washington’s laws, as the entitlement to a maritime lien was established under US maritime law the court entered judgment against the vessel
Royal and Sun Insurance Co of Canada v The Renegade III 2001 FCT 1050 (25 September 2001) racing yacht damaged, underwriters paid $110,000 in insurance proceeds but subsequently alleged non-disclosure or misrepresentation, underwriters commenced action and arrested vessel, owners had already begun an action in BC Supreme Court claiming an additional $12,000, owners applied to stay the underwriters' Federal Court action, court held that the defendant would have to show that the continuation of the action would cause them prejudice or injustice, even so the plaintiff could prevent the stay if it showed that the stay would deprive it of a legitimate personal or juridical advantage available to it in the Federal Court, while BC Supreme Court was a convenient forum it was not clearly a more appropriate place for the action, to proceed in rem in the BC Court the underwriters would have had to commence a separate action and re-arrest the vessel, some doubt about constitutionality of the BC Supreme Court's in rem jurisdiction
Trans Tec Services Inc v The Lyubov Orlova 2001 FCT 958 (28 August 2001) plaintiff provided bunkers to several ships pursuant to a contract with a former charterer of defendant vessel, when present operator commenced its own charter of the vessel the plaintiff made it aware of the outstanding accounts, operator offered to settle the invoices and provided the funds necessary to pay those invoices which the plaintiff accepted, plaintiff then argued that the terms of its contract with the former charterer permitted it to apply those payments to the oldest invoices outstanding which related to another vessel so the debt of the current vessel remained outstanding, operator sought summary judgment dismissing the action, plaintiff opposed this claiming that there was conflicting evidence as to the operator’s knowledge of the contractual terms, court rejected this on the basis of credibility of witnesses, operator was a third party not bound by earlier contract, operator’s offer to pay the vessel’s outstanding debts constituted a new offer for a unilateral contract which the plaintiff accepted, that offer related only to defendant ship, plaintiff bound by its acceptance
Unitor Asa v The Seabreeze 2001 FCT 416 (01 May 2001) ship arrested an sold by court order, competing claims against the proceeds of sale, only offer to purchase came from a company related to the vessel's mortgagee, shortly following the sale the ship was lost in a storm, claimants against the proceeds were required to file affidavits of claim, court prescribed a process for adjudication of certain so-called initial claims for which the highest level of priority was asserted, included claims by mortgagee for reimbursement of amounts paid in crew wages and repatriation and for the maintenance of the vessel while under arrest, also for the value of bunkers at time of sale, other claimants applied for documentary disclosure and the right to cross-examine the deponent of mortgagee’s affidavits of claim, argued that if mortgagee had achieved an undisclosed profit by purchasing the vessel at a time when it knew that there was another purchaser prepared to pay more it should be required to satisfy its claims from this secret profit, court held the mortgagee not obliged to disclose documentsor produce its deponent as the information sought was neither formally nor legally relevant – the alleged undisclosed profit would not have assisted the applicants in challenging the ranking of the mortgagee’s initial claims, in addition without sworn affidavit evidence of a resale there was no factual basis to support the applicants' inquiries
Wilson Fishing Co Ltd v Le Western Investor, 2001 FCT 1390 (17 December 2001) collision during roe herring fishery in which participants attempt to catch as much of this valuable product as possible within brief period, collision between trawler and motor skiff which deploying a net from another vessel, owners of vessel sued trawler to recover costs of net’s repair and loss of income, both parties committed a number of errors contributing to collision, final error was that after the collision the trawler captain ordered her engines restarted resulting in the vessel becoming tangled in net, trawler was held wholly responsible for net’s damage – deemed to have caused the damage to the net which was not the inevitable consequence of the collision, plaintiffs received damages for net’s repair, no loss of income awarded as plaintiffs could not show they would have recovered a catch in this speculative fishery
2000
Anraj Fish Products Industries Ltd v Hyundai Merchant Marine Co Ltd (2000) 262 NR 270; (2000) 190 FTR 259 (20 June 2000) plaintiff made claim for cargo damage, prothonotary granted stay of claim pending litigation in Korea, Korean jurisdiction clause in bill of lading, prothonotary relied on The Eleftheria decision to conclude that serious inconvenience to the plaintiff was not a sufficiently strong reason to depart from the forum identified in the bill of lading, stay overturned by Federal Court judge but reinstated by Federal Court of Appeal, held the prothonotary properly applied the applicable test, emphasised that the premise of the decision in The Eleftheria was that parties should be held to their agreements and courts should not override jurisdiction clauses unless it would not be reasonable or just to do so, proceedings stayed conditional upon Hyundai waiving a time bar that otherwise applicable in Korea.
Bayside Towing Ltd v Canadian Pacific Railway [2000] 3 FC 127 (02 February 2000) 1976 Convention on Limitation of Liability for Maritime Claims, dumb barge in tow of plaintiff’s tug struck and damaged railway bridge, plaintiff commenced limitation action and constituted the limitation fund based on the tonnage of the tug, defendant challenged the right to limit liability and the amount of the limitation fund, plaintiffs sought to strike out portions of the defence, Article IV of Convention – right to limitation lost if the loss resulted from a personal act or omission committed with intent to cause such loss or recklessly with knowledge that such loss would probably result, court struck out portions of defence which alleged negligence/defaults falling short of recklessness, struck out allegations of defaults on the part of barge owner, declined to strike out allegations as to breaches of the Collision Regulations by the tug and the allegation that such breaches constituted wilful defaults, court expressed doubt as to whether this would bar limitation but left it to be tested at trial as it was one of the first proceedings under the new limitation of liability legislation, defendants also argued that the relevant limitation tonnage was that of the tug and tow combined, court noted that this principle no longer held where the cause of the damage was the improper navigation of the tug and not the tow, court allowed the issue to go to trial as the defendants suggested this analysis may not be determinative under the new limitation of liability regime
Bayside Towing Ltd v Canadian Pacific Railway Co [2001] 2 FC 258 (28 November 2000) dumb barge in tow of plaintiff’s tug struck and damaged railway bridge, application for summary judgement in plaintiffs limitation claim, defendant conceded plaintiff was entitled to limit its liability, whether limitation fund should be based upon the tonnage of tug or on combined tonnages of tug and tow, according to The Rhone decision the combined tonnage of a tug and tow is used to calculate the limitation fund only where they are in common ownership and both had a causative role in the damage, defendant argued this had changed since the incorporation of the Convention on Limitation of Liability for Maritime Claims and that the plaintiff’s limitation fund should be calculated on the tonnage of both vessels, court concluded that the new legislation did not evidence an intention on the part of Parliament to vary the principles prescribed by the Supreme Court, plaintiff entitled to limit its liability based on the tonnage of its tug alone
Canadian Pacific Railway Co v The Sheena M [2000] 4 FC 159 (07 March 2000) plaintiff claimed damage to its railway bridge caused when dumb barge in tow of defendants’ tug struck it, tug owner sought a stay of the action pending outcome of its limitation proceeding, court must be satisfied that the stay would not be unjust to the plaintiff and that continuation of the action would cause prejudice to defendants, defendant a one man operation, forcing the action to trial could be lengthy and unnecessary, action would be prejudicial as it would shut down defendant’s operation, 1976 Convention limitation regime was designed to reduce litigation and it should be allowed to unfold as intended, no prejudice to plaintiff as delay expected to be brief, if plaintiff succeeded on limitation action this could do away with need for a trial on liability, no surprise or other prejudice, stay granted
Conohan v The Cooperators (2000) 197 FTR 239; [2001] 2 FC 238 (28 November 2000) marine insurance, collision, claim by plaintiff owner of fishing vessel against insurer of other fishing vessel, owner of other vessel admitted liability and assigned to the plaintiff his rights against the insurers, insurer denied liability, captain of insured vessel convicted of operating vessel under influence of alcohol, insurer raised implied warranty that the marine adventure is lawful, this rejected as the statutory definition of ‘marine adventure’ meant any situation where insurable property was exposed to ‘maritime perils’ which encompassed events not in the control of the insured unlike the causes of the present collision, insurer also alleged it was not liable because the captain had engaged in wilful misconduct but this was rejected as no evidence that the captain wilfully breached collision rules merely that did not maintain proper lookout, insurer also defended on the basis that the policy excluded damage caused by drunken operation of the vessel, court rejected this as the wording only covered claims for damage to the vessel and not claims for indemnity, in any case it was not proven that there was drunken operation of the vessel at time of collision, insurer ultimately prevailed due to a clause which provided that the insured's liability was invoked if the vessel collided with another vessel and as a consequence the insured had become liable to pay and did pay damages, insurer had no liability unless the insured had first paid the claim to the plaintiff which he had not done
Encan Liquidation General Canada Inc v Transintra Canada 2000 CanLII 16598 (FC) (29 November 2000) shipper brought action claiming shortage and damage against ocean carriers and freight forwarder, freight forwarder claimed against one of the carriers as a third party, carrier applied for a stay of the freight forwarder’s third party action due to a clause in the bill of lading selecting Genoa as the jurisdiction for adjudication of disputes, bill of lading provided that the merchant agreed to all terms therein and that the term ‘merchant’ included the shipper and anyone acting on behalf of the shipper, freight forwarder therefore deemed to have accepted the terms of the bill of lading and bound by the jurisdiction clause, as the freight forwarded did not establish a strong case for disregarding the jurisdiction clause the court granted the stay
Fibreco Pulp Inc v Star Shipping A/S (The Star Dover) (2000) 257 NR 291; (2000), 184 FTR 98 (24 May 2000) action for cargo damage, plaintiff made contract of affreightment with Star Shipping, defendants applied to have actions stayed in favour of London arbitration, contract of affreightment provided that any disputes were to be arbitrated in London, bills of lading provided that any dispute to be decided in the country where the carrier had its principal place of business, contract of affreightment stated it prevailed in the event of conflict with bills of lading, court thus bound to stay the action against Start Shipping, effect of clause on some other defendants was more complicated, bills of lading included a Himalaya clause pursuant to which the contractors argued they were entitled to the benefits of the arbitration clause, in absence of evidence that these companies either conferred upon the carrier authority to contract or later ratified such the court rejected this argument, however court exercised its residual discretion and stayed the entire action in order to resolve the plaintiffs' claim, upheld on appeal
Governor and Company of the Bank of Scotland v The Nel [2001] 1 FC 408 (02 August 2000) The Nel was arrested by Bank of Scotland as mortgagee and sold by court process, competing claims, mortgage claim so large that any claim without maritime lien status would not be paid, Bank involved in purchase and resale of Nel’s sister ship which was part of fleet mortgaged to Bank, sister ship purchased at court ordered sale in South Africa by Bank through a nominee company, immediately sold vessel to an existing customer of the Bank at a profit, profit held to be a return on Bank's security which had to be applied towards satisfaction of fleet mortgage thereby reducing the Bank's claim against proceeds of sale, court permitted necessaries suppliers to claim US maritime liens as they utilised US agents who supplied the necessaries, court rejected argument that a claim supported by a maritime lien against a sister ship could be transferred with equivalent priority against the proceeds of the sale of the Nel under sister ship arrest jurisdiction, accepted that claims for necessaries supplied to other vessels in the fleet could be exercised against the Nel on an unsecured basis as registered owners were shell or sham companies disguising the fact that the corporate parent was the true owner, court exercised its jurisdiction to vary usual framework of priorities to place a Canadian supplier of medical services in a position analogous to that of maritime lien holder, clinic had no ethical choice but to assist mariners, therefore appropriate and in keeping with justice to afford it a higher priority
Holt Cargo Systems Inc v The Brussel (2000) 16 CBR (4th) 188; (2000) 185 FTR 1 (11 February 2000)competing claims against proceeds of sale of ship, mortgagee asserted fleet mortgage claim large enough to consume entire proceeds, if mortgagee’s claim upheld only claims entitled to maritime lien status would recover, a number of American necessaries suppliers were entitled under US law to a maritime lien against ship, several of these asserted claims related to the supply of necessaries to the ship and her sister ships, claims against the ship were entitled to a maritime lien, court rejected the claimants' contention that the claims which were supported by maritime liens against the sister ships could be asserted with equivalent priority against the sold vessel, maritime lien a privileged claim that attached to a particular ship and was not transferred to sister ships by virtue of sister ship arrest legislation
Inter Atlantic Canada Limited v The Cuyaguateje (2000) 180 FTR 318 (18 January 2000) plaintiff arrested defendant ship and her cargo as security for a claim for breach of an agreement concerning access to a shrimp quota allocated by North Atlantic Fisheries Organization to Cuba, vessel's charterer applied to set aside arrest, court granted the motion holding that that claim under the quota agreement was not so integrally connected to maritime matters as to be a matter of maritime law within the Federal Court’s jurisdiction, rejected plaintiff's argument that the provision of the quota represented the supply of necessaries, in any case the defendant ship and its cargo were not the subject of the action and accordingly could not be the subject of an arrest
John E Canning Ltd v Tripap Inc (2000) 185 FTR 304 (05 April 2000) plaintiff contracted with defendant for an annual quantity of wood, defendant terminated the agreement on the grounds that the plaintiff had failed to perform its obligations, plaintiff commenced action for breach of contract, defendant applied to strike out claim on the basis that the action did not fall within the Federal Court's maritime jurisdiction, court considered that the specific claims being advanced had to be integrally connected to maritime matters, court did not have jurisdiction as the sole claim advanced related to the unlawful termination of a purchase and sale agreement and no damages were claimed in respect of any maritime aspects of the agreement
Kajat v The Arctic Taglu [2000] 3 FC 96; (2000) 252 NR 152 (15 February 2000) plaintiff’s husband and son perished in collision of her husband's fishing boat with a tug and barge combination, trial judge held collision caused largely by improper lighting aboard tug and tow and by the operator of the tug and barge using a search light to pan up and down the length of the vessels when the fishing boat was approaching, defendants 85% at fault and plaintiff's husband 15%, Coast Guard liable for 30% of liability attributable to defendants as the failure to properly light was partly attributable to the failure of Coast Guard officials to identify the pushing arrangement as a composite unit and to their misinterpretation of the Collision Regulations, defendants appealed alleging that the trial judge erred in admitting evidence of two commercial fishermen who related their experiences in encountering the tug and tow at night on previous occasions, fishermen had interpreted the use of the search light as a signal that there was a danger on the port side of those vessels causing them to turn across bow of tug and tow, defendants argued these encounters were sufficiently dissimilar so as to have no probative value, in order for similar fact evidence to be admissible the trial judge must evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established, failure to make a clear evaluation as to whether the evidence was logically probative constituted an error in law, appeal allowed and ordered new trial
Kanematsu Gmbh v Acadian Shipbrokers Ltd (2000) 259 NR 201 (21 June 2000) plaintiff sought summary judgment against defendant charterers of vessel for inducing owner to breach its contractual obligations by discharging and delivering its cargo without presentation of the original bills of lading, defendants argued there was no inducement of vessel's owner to deliver the cargo but only to discharge it, motions judge granted summary judgement based on principle that a ship owner who surrenders possession of the goods without production of bill of lading is liable, Court of Appeal held that the motions judge had erred in granting summary judgment in reliance on the law imposing liability upon ship owners who part with goods without surrender of the original bill of lading, appellants were charterers and not owners of the vessel, any claim against them was as tortfeasors, whether the elements of these torts was made out not clear from evidence adduced on motion for summary judgment
Laing v Boreal Pacific (2000) 264 NR 378;(2000) 188 FTR 160 (13 October 2000) marine insurance, appellant claimed for loss of excavator under a marine insurance policy following an accident at sea, underwriter refused to pay on the grounds that the vessel was not seaworthy and the appellant was privy to this fact, trial judge found the vessel had been too heavily laden for the sea conditions and the excavator was not secured or stowed in a safe manner, concluded the appellant had knowledge of unseaworthy condition and turned a ‘blind eye’ to it, Court of Appeal concluded that turning a blind eye to the fact that known circumstances rendered a ship unseaworthy constituted sufficient privity to exclude underwriter’s liability
Nissho Iwai Co v Shanghai Ocean Shipping Co (2000) 185 FTR 314 (20 June 2000) forum non conveniens, vessel on way from Canada to Japan grounded in Russian waters, plaintiff cargo interests Japanese based corporations, defendant corporation based in China, plaintiffs alleged grounding caused by incompetence of officers and crew, argued there was a real and substantial connection to Canada because a number of witnesses in Canada observed the competence of the officers and crew, argued they should be afforded a range of juridical advantages not available through Chinese courts, court held there was a real and substantial connection between this action and China, virtually all the evidence as to the competence of officers and crew would come from witnesses in China, advantages to plaintiffs in Canadian court not sufficient to outweigh this real and substantial connection, stayed the Canadian proceeding on condition that defendant's waiver of the time bar available under Chinese law be accepted by Chinese court
North Ridge Fishing Ltd v The Prosperity (2000) 70 BCLR (3d) 283;[2000] 3 WWR 368 (13 December 1999) plaintiff alleged the Prosperity cut its net while seining for roe herring resulting in damage to the seine and loss of catch, owners applied to strike out action on the basis that the vessel was under bareboat charter at that time, plaintiffs sought leave to add bareboat charterer as a defendant, action barred by s572(1) of Canada Shipping Act as it was over two years after the collision, whether court should extend the limitation period under s572(3), s572 reflected Canada's adherence to the Collision Convention, looked to applicable English jurisprudence, less onerous test under Canadian law, plaintiff had a prima facie case, no prejudice to bareboat charterer as knew about claim from outset, more difficult question was whether it was in interests of justice to extend time, plaintiffs' solicitors had considered joining the charterer shortly after collision, court critical of lack of evidence on why did not join and why now changed minds, nevertheless concluded that interests of justice required the extension of time
Pantainer Ltd v 996660 Ontario Ltd (2000) 5 BLR (3d) 237; (2000)183 FTR 211 (17 March 2000) plaintiffs were an ocean carrier and freight forwarder which had carried a number of shipments for defendant and stored cargo in warehouses pending distribution, claimed for unpaid freight and ancillary charges, motion for summary judgment, defendant claimed it was entitled to assert counterclaims and set-off in connection with damage and delay and breach of contract, counterclaims related to different shipments than those for which freight remained unpaid, court accepted the plaintiff was entitled to summary judgement on the principle that in the absence of agreement to the contrary freight must be paid without set-off, then considered the defendants reliance on the Expeditors decision in which the court granted summary judgment but stayed execution of the judgment pending the outcome of the defendant's counterclaim as the counterclaim arose out of the same transaction and the plaintiff had not demonstrated it would suffer any serious prejudice, court distinguished that decision as the counterclaims did not relate to the same transactions as the freight claims, refused stay
Paramount Enterprises International Inc v. The An Xin Jiang [2001] 2 FC 551 (15 December 2000) Beston agreed to transport a cargo aboard a ship chartered by Paramount but then advised Paramount it had decided to entrust the cargo to another ship, Paramount filed a statement of claim in rem and in personam alleging breach of contract by shipper and tortious interference with contractual relations by ship owner, defendants applied to strike out the claims in rem and set aside the warrant of arrest, in order for court to have in rem jurisdiction the relevant property must be the cause of the action and there must be a sufficient connection between it and the claim, there was no ‘nexus or causal relationship’ between the action and the ship or cargo such either was the subject of the action, the subject of the action was the charterparty and the personal actions of the defendants, in rem proceedings struck out
Ruby Trading SA v Parsons (2000) 194 DLR 4th 303; [2001] 2 FC 174 (21 November 2000) whether Federal Court had jurisdiction to entertain an action by a foreign ship owner against four of its foreign crew members and a Canadian union for inducing breach of contract between the ship owner and the crew members and against the union's representative and crew members for conspiracy to cause economic harm, owners obtained injunction preventing those parties from disrupting the loading or movements of the vessel, whether the subject matter of the claims sounding in contract and tort were sufficiently connected with maritime matters to warrant application of Canadian maritime law, as the employment contracts related to the operation of a ship and the losses claimed resulted from delays in the vessel's operation an integral connection did exist sufficient to afford jurisdiction, rejected argument that jurisdiction over these claims was exclusively assigned to the Canadian Industrial Relations Board
Transport Navimex Canada Inc v Canada 255 (2000) NR 124; (2000) 180 FTR 19 (04 February 2000) appellant contracted with Crown to transport a cargo, Crown subsequently terminated contract as it concluded the vessel did not have the requisite capacity, at trial Crown was liable for unlawfully terminating agreement but action dismissed as plaintiff failed to establish any losses, whether the evidence at trial was sufficient to establish losses, plaintiff also argued it should be awarded damages for lost profits it could have earned in the back haul, court concluded that insufficient evidence to establish the plaintiff would have earned freight on the return, however seems that if plaintiff had been able to prove it had booked a return cargo the freight would have been recoverable from the Crown notwithstanding that the carriage of this back haul cargo would have been entirely external to the contract between the parties
1999
Trade Arbed Inc v The Macado 1999 CanLII 8912 (FC) (20 October 1999) arrest of vessel set aside, the fact the carriage of the defendant cargo may have made the carriage of the plaintiff's cargo commercially viable did not mean the defendant cargo was the subject of the action, defendant sought to have costs awarded on solicitor and client basis, sought order that plaintiff's counsel pay these costs personally, judge noted that the decision setting aside the arrest was rendered because there was an abuse of process, noted that seizure of cargo procedures are extraordinary and constitute interference with another’s property, facts therefore sufficient to justify the exercise of the court's jurisdiction to award costs on a solicitor and client basis against the plaintiff but not against counsel personally
1990
Francosteel Corp v Fednav Ltd, 37 FTR 184 (7 September 1990) CARRIERS – carriage of steel – damage to goods - rust damage to steel during shipment – carriers responsibility to prevent sweat damage - burden of proof in negligence action - proof that the goods were tendered in good condition to the carrier and were ultimately received in a damaged condition – Article IV of the Hague Rules – held, plaintiff has not met its burden of establishing a prima facie case of liability, or alternatively, defendants have established that the damage was not due to any act of negligence on their part.
