Date: 19980903
Docket: T-1270-97
MONTRÉAL, QUEBEC, THE 3RD DAY OF SEPTEMBER, 1998
Present: Mr. RICHARD MORNEAU, PROTHONOTARY
Action in rem against the vessels M/V BONTEGRACHT and KIELGRACHT and in personam against the Owners and Charterers of the vessels M/V BONTEGRACHT and KIELGRACHT
Between:
ABITIBI-PRICE SALES CORPORATION
and
CORPORACION LA PRENSA S.A.
Plaintiffs
AND
C.V. SCHEEPV.ONDERNEMINEG "Sambeek"
and
CARPULP N.V. & SHIPPING CO. TRANSPULP
and
SPLIETHOFF'S BEVRACHTINGSKANTOOR B.V.
and
THE OWNERS AND CHARTERERS
OF THE VESSEL BONTEGRACHT
and
THE OWNERS AND CHARTERS OF
THE VESSEL KIELGRACHT
and
THE VESSEL BONTEGRACHT
and
THE VESSEL KIELGRACHT
Defendants
ORDER
The plaintiffs shall have six (6) months from the date of this order in which to serve their statement of claim on the vessel BONTEGRACHT, with costs against the plaintiffs.
In regard to the defendants' motion, the writ of attachment issued against the BONTEGRACHT on August 14, 1998 shall be set aside. In addition, the plaintiffs shall return to the defendants the letter of undertaking they obtained in the context of this litigation for the purposes of preventing the attachment of the vessel BONTEGRACHT. Finally, costs shall be ordered against the plaintiffs on this motion according to the maximum in column IV of Tariff B. The defendants' motion is otherwise dismissed.
Richard Morneau
Prothonotary
Certified true translation
Bernard Olivier
Date: 19980903
Docket: T-1270-97
Action in rem against the vessels M/V BONTEGRACHT and KIELGRACHT and in personam against the Owners and Charterers of the vessels M/V BONTEGRACHT and KIELGRACHT
Between:
ABITIBI-PRICE SALES CORPORATION
and
CORPORACION LA PRENSA S.A.
Plaintiffs
AND
C.V. SCHEEPV.ONDERNEMINEG "Sambeek"
and
CARPULP N.V. & SHIPPING CO. TRANSPULP
and
SPLIETHOFF'S BEVRACHTINGSKANTOOR B.V.
and
THE OWNERS AND CHARTERERS
OF THE VESSEL BONTEGRACHT
and
THE OWNERS AND CHARTERS OF
THE VESSEL KIELGRACHT
and
THE VESSEL BONTEGRACHT
and
THE VESSEL KIELGRACHT
Defendants
REASONS FOR ORDER
Mr. RICHARD MORNEAU, PROTHONOTARY:
[1] These two motions are interrelated.
[2] The first motion, by the plaintiffs under Rule 8 of the Federal Court Rules, 1998 (the "Rules"), is to obtain an extension of the time in which to serve the statement of claim in rem against the vessel BONTEGRACHT.
[3] The second motion, by the defendants C.V. Scheepv.Ondernemineg "Sambeek" and Spliethoff's Bevrachtingskantoor B.V. (the "defendants"), is effectively in opposition to this extension sought by the plaintiffs. The defendants are further asking that a letter of undertaking they gave the plaintiffs recently, effectively to prevent the seizure of the vessel BONTEGRACHT, be returned to them and that special costs be allowed them given the circumstances surrounding the supplying of this letter of undertaking.
The facts
[4] The essential facts for the purpose of disposing of these motions may be summarized as follows.
[5] The plaintiffs commenced their action on June 11, 1997. Under the rule then in force, they had one year from that date in which to serve their action on the vessel, that is, until June 11, 1998 (the relevant period). It appears that during the relevant period, the BONTEGRACHT was in Canadian waters only once, from August 6 to 13, 1997. The plaintiffs were unable to serve process at that time. On or about August 14, 1998, the plaintiffs or their solicitors realized that the BONTEGRACHT was again in Canadian waters. Although the relevant period had by that point expired, the plaintiffs had a writ of attachment issued against the BONTEGRACHT.
[6] I conclude from the exchange of letters contained in the record that the plaintiffs' solicitors had brandished the spectre of seizing the ship in order to obtain a letter of undertaking from the defendants.
Analysis
[7] From the evidence on the record, I am unable to criticize the methods adopted by the plaintiffs and their solicitors or the frequency with which such methods have been used and to find, as the defendants urge, that the plaintiffs failed, during the relevant period, to take a series of reasonable steps to attempt to serve their statement of claim on the BONTEGRACHT. On the contrary, my conclusion is a positive one in this regard. They shall therefore be allowed an extension of time.
[8] In granting this extension, I do not think I am reviving a cause of action otherwise prescribed against the BONTEGRACHT and accordingly prejudicing the defendants. In my opinion, the filing of the statement of claim on June 11, 1997 interrupted this limitation period.
[9] Furthermore, I do share the defendants' criticism of the plaintiffs for threatening in August 1998 to literally seize the BONTEGRACHT when, at the time, this vessel could not validly be seized by the plaintiffs in the context of this action since it was beyond the relevant time. In this regard, it will be necessary to set aside the writ of attachment issued August 14, 1998 and to order the plaintiffs to return to the defendants the letter of undertaking they obtained in the context of this litigation for the purposes of preventing the seizure of the vessel BONTEGRACHT.
[10] Under Rule 410(2), the plaintiffs shall be ordered to pay the costs on their motion for an extension of time. In so far as the defendants' motion is concerned, it is appropriate, given the plaintiffs' actions in regard to the letter of undertaking, to order costs against the plaintiffs on this motion under the maximum in column IV of Tariff B.
[11] An order shall be issued accordingly.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
September 3, 1998
Certified true translation
Bernard Olivier
Federal Court of Canada
Court file no.T-1270-97
BETWEEN
ABITIBI-PRICE SALES CORPORATION
and
CORPORACION LA PRENSA S.A.
Plaintiffs
- and -
C.V. SCHEEPV.ONDERNEMINEG "Sambeek"
and
CARPULP N.V. & SHIPPING CO. TRANSPULP
and
SPLIETHOFF'S BEVRACHTINGSKANTOOR B.V. and
THE OWNERS AND CHARTERERS
OF THE VESSEL BONTEGRACHT and
THE OWNERS AND CHARTERS OF
THE VESSEL KIELGRACHT and
THE VESSEL BONTEGRACHT and
THE VESSEL KIELGRACHT
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO. T-1270-97
STYLE: ABITIBI-PRICE SALES CORPORATION
and
CORPORACION LA PRENSA S.A.
Plaintiffs
AND
C.V. SCHEEPV.ONDERNEMINEG "Sambeek"
and
CARPULP N.V. & SHIPPING CO. TRANSPULP
and
SPLIETHOFF'S BEVRACHTINGSKANTOOR B.V. and
THE OWNERS AND CHARTERERS
OF THE VESSEL BONTEGRACHT and
THE OWNERS AND CHARTERS OF
THE VESSEL KIELGRACHT and
THE VESSEL BONTEGRACHT and
THE VESSEL KIELGRACHT
Defendants
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:August 31, 1998
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED:September 3, 1998
APPEARANCES:
Francis Rouleau for the plaintiffs
Richard L. Desgagnésfor the defendants C.V. Scheepv.Ondernemineg "Sambeek" and Spliethoff's Bevrachtingskantoor B.V.
SOLICITORS OF RECORD:
Sproule, Castonguay, Pollack for the plaintiffs
Francis Rouleau
Montréal, Quebec
| Ogilvy Renault Richard L. Desgagnés Montréal, Quebec |
for the defendants C.V. Scheepv.Ondernemineg "Sambeek" and Spliethoff's Bevrachtingskantoor B.V.
|