Date: 19991125
Docket: A-488-98
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
(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:
INDUSTRIAL CRATING INC.
Appellant
(Third Party before Trial Division)
AND:
CATERPILLAR OVERSEAS S.A., ENMACO A/S,
ENMACO MOTORER A/S
Respondents
(Plaintiffs before Trial Division)
- and -
THE VESSEL "CANMAR VICTORY", CANADA MARITIME LTD.,
DAN TRANSPORT CORPORATION, DAN TRANSPORT A/S,
CIRCLE INTERNATIONAL INC.
Respondents
(Defendants before Trial Division)
Heard at Montreal, Quebec, Thursday, November 25, 1999
Judgment delivered from the Bench at Montreal, Quebec, Thursday, November 25, 1999
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 19991125
Docket: A-488-98
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
(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:
INDUSTRIAL CRATING INC.
Appellant
(Third Party before Trial Division)
AND:
CATERPILLAR OVERSEAS S.A., ENMACO A/S,
ENMACO MOTORER A/S
Respondents
(Plaintiffs before Trial Division)
- and -
THE VESSEL "CANMAR VICTORY", CANADA MARITIME LTD.,
DAN TRANSPORT CORPORATION, DAN TRANSPORT A/S,
CIRCLE INTERNATIONAL INC.
Respondents
(Defendants before Trial Division)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montreal, Quebec
on Thursday, November 25, 1999)
LÉTOURNEAU J.A.
[1] We are of the view that this appeal from a decision of Denault J. rendered on January 21, 1998 cannot succeed. By such decision, the learned motions judge dismissed an application by the Third Party, Industrial Crating Inc., seeking an Order dismissing the Third Party proceedings brought against it by the defendant, Dan Transport Corporation.
[2] The evidence filed reveals that the Third Party, Industrial Crating Inc., undertook to stuff goods in an ocean-going container, knowing that the container would be placed on board a ship in Montreal for passage across the Atlantic ocean. Indeed, it is alleged that the Third Party presented itself as a specialist in the loading and securing of cargoes in containers to be transported by sea (Affidavit of Ame Norsk, Appeal Book, Tab 8, page 2, paragraph 7). Such an undertaking is of maritime nature (McGregor Cory Cargo Services B.V. and Peter Cremer Befrachtungskontor GMBH et al., F.C.A. no. A-279-89, September 11, 1990). It is integrally connected to maritime matters and intimately connected to the carriage of goods by sea.
[3] The same can be said of the claims since the contract between the Third Party and Dan Transport Corporation was, as the Third Party notice alleges, for the loading, blocking and bracing of cargo in an Ocean Container.
[4] We also agree with the motions judge that there was a sufficient legal nexus between the Third Party and the territorial jurisdiction of the Court: Oy Nokia Ab v. The "Martha Russ", (1973) F.C. 394 (F.C.T.D.) affirmed on appeal (1974) F.C. 410 (F.C.A.). The knowing preparation of cargo for a marine voyage beginning in Canada is an "act, conduct or agreement" of the Third Party that can be related in personam to the territorial jurisdiction of this Court.
[5] The appeal will be dismissed with costs.
"Gilles Létourneau"
J.A.