T-1738-96
| ACTION IN REM AGAINST THE VESSEL "CANMAR PRIDE" AND IN PERSONAM AGAINST THE OWNERS AND CHARTERERS OF THE VESSEL "CANMAR PRIDE" |
| BETWEEN: IMPORTATION DUCALE INC.-and- |
SIGE S.p.a.-and-
CALZATURIFICIO ZI. CO. SPORT, di
ZINGRILLO VINCENZO-and-
CALZATURIFICIO SAN GIORGIO S.r.l. -and-
F.LLI SAGRIPANTI S.p.A-and-
| ALL OTHERS HAVING AN INTEREST IN THE |
CARGO LADEN ON BOARD THE M.V. "CANMAR
PRIDE"
Plaintiffs
AND:
DSR-SENATOR LINES GMBH-and-
EUROLINE NAVIGATION INC.-and-
DIORYX MARITIME CORP.-and-
| THE OWNERS AND CHARTERERS OF THE VESSEL |
"CANMAR PRIDE"-and-
THE VESSEL "CANMAR PRIDE"
Defendants
REASONS FOR ORDER
NOËL, J.
This is an appeal from a decision of the Prothonotary refusing the grant of an extension of time to serve the Vessel "Canmar Pride", Euroline Navigation Inc. and Dioryx Maritime Corp. with the Statement of Claim.
The Statement of Claim was filed on July 23, 1996. It was not served on the Defendant DSR-Senator Lines ("DSR") until February 20, 1997. Counsel for the Plaintiffs chose not to serve the other Defendants at that time. He explained that before doing so, he wanted confirmation that DSR was not the carrier under the contract of carriage. Counsel for the Plaintiff asked for this confirmation from counsel for DSR by letter dated April 2, 1997 and on that occasion also requested production of DSR's Statement of Defence within the time prescribed by the Rules.
The Statement of Defence was filed by DSR on April 14, 1997. It did not shed any light on the question as to whether DSR was or was not the carrier under the contract of carriage. Later, upon being provided with copy of the documents comprised in DSR's list of documents, counsel for the Plaintiff came to the following realization:
| "It appears from the face and reverse side of the DSR-Senator Lines bill of lading that this Defendant may attempt to argue that pursuant to the Contract of Carriage, they are not the carrier and therefore not liable for the damage sustained by the Plaintiffs, the whole as appears from the face and terms and conditions of the DSR-Senator Lines bill of lading produced herewith as exhibit "C" to this any affidavit;1" |
Shortly thereafter, on August 7, 1997, a motion to extend the time to serve the other Defendants was filed by counsel for the Plaintiffs. The motion was heard by the Prothonotary and was denied with reasons on August 14, 1997. The Plaintiffs appeal from that decision.
Counsel for the Plaintiffs recognized that the decision of the Prothonotary not to grant the extension of time was a discretionary exercise. However, he points out that the decision reached by the Prothonotary is potentially determinative of the final outcome of his claim, and he invites me, on the basis of one of the two exceptions noted by the Court of appeal in Aqua-Gem,2 to exercise my discretion aknew and reverse the order of the Prothonotary.
The Prothonotary did not find that the reasons advanced for not serving the Defendants within the 12 month delay afforded by Rule 306 were sufficient to warrant the grant of the extension. Counsel had argued that having regard to the amounts in issue, the cost of serving the other Defendants in Greece, and the possibility that the remaining Defendants would be served unnecessarily, it was reasonable for him to have withheld service until DSR's line of Defence became apparent.
The Prothonotary held that the strategy adopted by counsel for the Plaintiffs in prosecuting his claim did not constitute a sufficient reason to extend the time. He noted that the saving of service costs alone or in conjunction with the other reasons raised by counsel for the Plaintiffs is not a sufficient reason to extend the time.
Exercising my own discretion, I come to the same conclusion as the Prothonotary but for slightly different reasons. I believe that cost saving and practical considerations involved in avoiding unnecessary and costly steps in litigation can give rise to valid and sufficient reasons for withholding service in the appropriate circumstances, and if the failure to serve in this instance was explained by such considerations, I would be inclined to grant the extension. However, such is not the case.
If I understood counsel correctly, he would have known from the moment when the action was launched in July 1996 that his decision to serve or not to serve the other Defendants was dependant on the position which DSR would take in the matter. Despite this, he chose not to serve DSR until February 1997 with the result that DSR's position did not become apparent to him until the defence was filed and the documents were disclosed in July 1997. The delay in obtaining a useful understanding of DSR's position is obviously attributable to counsel for the Plaintiffs, and that is why in the end he ran out of time3. In my view the record does not disclose sufficient reasons for this Court to extend the time for serving the Defendants in question.
For these reasons the appeal is denied.
Marc Noël
Judge
MONTREAL, QUEBEC
September 10, 1997
T-1738-96
| AN ACTION IN REM AGAINST THE VESSEL "CANMAR PRIDE" AND IN PERSONAM AGAINST THE OWNERS AND CHARTERERS OF THE VESSEL "CANMAR PRIDE" |
BETWEEEN: IMPORTATION DUCALE INC. -and-
SIGE S.p.a. -and-
| CALZATURIFICIO ZI. CO. SPORT, di |
ZINGRILLO VINCENZO -and-
| CALZATURIFICIO SAN GIORGIO S.r.l. |
-and- F.LLI SAGRIPANTI S.p.A - and-
ALL OTHERS HAVING AN INTEREST
IN THE CARGO LADEN ON BOARD
THE M.V., "CANMAR PRIDE"
Plaintiffs
DSR-SENATOR LINES GMBH -and-
| EUROLINE NAVIGATION INC. -and- |
| DIORYX MARITIME CORP. -and- |
THE OWNERS AND CHARTERERS
OF THE VESSEL "CANMAR PRIDE" -and-
THE VESSEL "CANMAR PRIDE"
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1738-96
| STYLE OF CAUSE: ACTION IN REM AGAINST THE VESSEL "CANMAR PRIDE" AND IN PERSONAM AGAINST THE OWNERS AND CHARTERERS OF THE VESSEL "CANMAR PRIDE" |
| IMPORTATION DUCALE INC.-and- |
SIGE S.p.a.-and-
CALZATURIFICIO ZI. CO. SPORT, di
ZINGRILLO VINCENZO-and-
CALZATURIFICIO SAN GIORGIO S.r.l. -and-
F.LLI SAGRIPANTI S.p.A-and-
| ALL OTHERS HAVING AN INTEREST IN THE |
CARGO LADEN ON BOARD THE M.V. "CANMAR
PRIDE"
Plaintiffs
AND:
DSR-SENATOR LINES GMBH-and-
EUROLINE NAVIGATION INC.-and-
DIORYX MARITIME CORP.-and-
| THE OWNERS AND CHARTERERS OF THE VESSEL |
"CANMAR PRIDE"-and-
THE VESSEL "CANMAR PRIDE"
Defendants
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 8th, 1997
REASONS FOR ORDER BY: The Honourable Mr. Justice Noël
DATED: September 10th, 1997
APPEARANCE:
Me Jean-François Bilodeau for the Plaintiffs
SOLICITORS OF RECORD:
SPROULE, CASTONGUAY, POLLACK
Montreal, Quebec for the Plaintiffs
BRISSET BISHOP for the Defendant
Montreal, Quebec DSR - Senator Lines GMBH
__________________
1 Affidavit of Jean-François Bilodeau sworn to August 7, 1997, paragraph 9.
2 Canada v. Aqua-Gem Investments Ltd., 149 NR 273 at p. 296. "Discretionary orders of the prothonotaries ought not to be disturbed on appeal to a judge unless (a) they are clearly wrong, ..., or (b) they raise questions vital to the final issue of the case ." (Per MacGuigan, J.A.)
3 The affidavit filed in support of the motion does make a passing reference to discussions which took place sometime between July 19, 1996 and April 1, 1997, between local representatives of DSR and counsel for the Plaintiffs. (Paragraph 3 of the affidavit). However, there is no indication as to precisely when these took place how long they lasted or the impact which they would have had on the decision not to effect service at any time prior to February 20, 1997 .