Date: 19980821
Docket: T-110-97
Action in rem against the Vessel "Canmar Victory" and in personam against Canada Maritime Ltd., Dan Transport Corporation, Dan Transport A/S, and Circle International Inc.
BETWEEN: CATERPILLAR OVERSEAS S.A.
-and-
ENMACO A/S
-and-
ENMACO MOTORER A/S
Plaintiffs
AND: THE VESSEL "CANMAR VICTORY"
-and-
CANADA MARITIME LTD.,
-and-
DAN TRANSPORT CORPORATION A/A
-and-
CIRCLE INTERNATIONAL INC.
Defendants
REASONS for ORDER and ORDER
DENAULT, J.
[1] This is an application by the Third Party, Industrial Crating, Inc., for an Order dismissing the Third Party Notice brought by one of the Defendants to the main action, Dan Transport Corporation.
[2] The Plaintiffs, including Caterpillar Overseas S.A., allege that they called upon the Defendant Dan Transport Corporation, among others, to carry under a bill of lading from Chicago, Illinois, to Aarhus, Denmark, parts of Caterpillar diesel internal combustion engines, in a container for loading on board the vessel "Canmar Victory" at the Port of Montreal. In the Amended Statement of Claim in rem and in personam against, among others, Dan Transport Corporation having a place of business in Elk Grove, Illinois, U.S.A., the Plaintiffs allege particularly in paragraphs 7 and 10 that loss of the cargo is "a direct result of Defendant's failure to safely load, stow, handle, carry... and deliver Plaintiffs' cargo in good order and condition, and/or... to provide fit and safe containers for the carriage of Plaintiffs' cargo..." (paragraph 7) and of the Defendant's failure "to exercise due diligence prior to and at the commencement of said voyage to make the said vessel and/or the containers supplied as part of the contract of carriage in all respects seaworthy and fit to carry Plaintiffs' cargo safely to their destination..." (paragraph 10).
[3] Following service of the Amended Statement of Claim, Defendant Dan Transportation Corporation caused to be issued and served on the Applicant a Third Party Notice whereby, as the issuer of the bill of lading, it claims to be entitled to claim full indemnity on the grounds that, if it is liable to the Plaintiffs, "such liability arises from the breach of your obligations to properly load, block and brace the cargo in the container at the point of shipment".
[4] Industrial Crating Inc., an american company, challenges the jurisdiction of this Court on the grounds that its services in relation to the storage of the cargo in the container were performed in the State of Illinois and that there is no connection between any of the services performed by it, or any alleged fault or breach of obligation on its part, and the jurisdiction of this Court.
[5] In brief, the Applicant first argues that jurisdiction of the Court as to third party actions must be considered on its own merits and that jurisdiction over the main action does not create jurisdiction to try issues arising between a third party and a defendant in the main action. To the extent that counsel for the Applicant admitted at the hearing that this Court had jurisdiction ratione materiae, this is a non-issue in view of paragraphs 22(1) and (2)h) and i) of the Federal Court Act.
[6] The Applicant also argues that since the Federal Court of Canada does not have jurisdiction in personam over the Third Party, an american company, there is no legal nexus between the Applicant and the territorial jurisdiction of this Court. In an affidavit by its general manager, the Applicant states the cargo was loaded into the container at its premises located in Itasca, Illinois, the services were paid for in that State, the company does not carry on business in Canada and performed no services in relation to the cargo or otherwise in Canada, and that it committed no fault or breach of contract in Canada.
[7] In Nokia Ab v. The Ship Martha Russ et al (1973) F.C. 394 (FCTD), affirmed in appeal (1974) F.C. 410 (FCA), Collier J. stated that there is "a basic principle in asserting jurisdiction over foreigners: that there must be some legal nexus between the foreign defendants1 and the territorial jurisdiction of the Court. This nexus must arise from some act, conduct, or agreement by the foreign defendant which is or can be related in personam to the territorial jurisdiction of the Court."
[8] In the present instance, the Respondent Dan Transport Corporation by its vice-president Arne Norsk, has filed evidence that Industrial Crating Inc. was the contractor specifically engaged for the stowage, blocking and bracing of Caterpillar equipment in containers destined for Scandinavian countries by carriage by sea, that the nature of the work carried out was what was required for safe stowage inside an ocean container which was to be carried across the ocean. The affiant also filed evidence that the Third Party was even aware of the intended route from Chicago to Montreal and then on to a Scandinavian country, Denmark.
[9] This Court is satisfied that a legal nexus has been established between the third party, Industrial Crating Inc., and the territorial jurisdiction of this Court.
[10] As a last comment, I am of the view that Industrial Crating Inc., as a third party, has not discharged the burden of demonstrating that there is another forum which is clearly more appropriate for the trial of the action than this Court (see Safari v. (The) "Iran AFZAL" (1996) 2 F.S. 954).
[11] For these reasons this motion is dismissed with costs.
J.F.C.C.
__________________1 It does not matter whether it is a defendant to the main action or to third party proceedings.