Date: 20021206
Docket: T-383-01
Neutral Citation: 2002 FCT 1270
Montréal, Quebec, December 6, 2002
Present: Mr. Richard Morneau, Prothonotary
ADMIRALTY ACTION IN REM AGAINST THE VESSEL "CAPE NORMAN" AND IN PERSONAM AGAINST MEDITERRANEAN SHIPPING COMPANY AND THE OWNERS AND ALL OTHER PERSONS HAVING A RIGHT IN THE VESSEL "CAPE NORMAN"
BETWEEN:
DEL MONTE FRESH PRODUCE N.A., INC.,
DEL MONTE FRESH PRODUCE,
DEL MONTE (CANADA) INC.,
DEL MONTE FRESH PRODUCE (S.A.) (PTY) LTD.,
and
DEL MONTE FRESH PRODUCE INTERNATIONAL INC.
Plaintiffs
and
MEDITERRANEAN SHIPPING COMPANY,
MEDITERRANEAN SHIPPING COMPANY (USA) INC.,
MEDITERRANEAN SHIPPING COMPANY (PTY) LTD.,
CAPE NORTH NAVIGATION INC.
c/o COLUMBIA SHIPMANAGEMENT (NETHERLANDS) b.v.,
THE VESSEL "CAPE NORMAN"
and
THE OWNERS AND ALL OTHER PERSONS
HAVING A RIGHT IN THE VESSEL "CAPE NORMAN"
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by the plaintiffs to validate as service the communication to the owners of the vessel "CAPE NORMAN" of the statement of claim under Rule 147 of the Federal Court Rules, 1998 (the Rules) or, in the alternative, for an extension of the time for service of the statement of claim on the owners under Rules 8 and 203.
[2] It is clear that in normal times, under Rules 137 and 203, the statement of claim had to be served in person on the owners under the provisions of the Hague Convention within sixty(60) days of the date the action is commenced.
[3] The action was commenced on March 2, 2001, and it was not until July 16, 2001, that the plaintiffs allege they communicated the statement of claim to the owners of the vessel.
[4] Should this situation be ratified under Rule 147?
[5] Rule 147 reads:
|
147. Where a document has been served in a manner not authorized by these Rules or by an order of the Court, the Court may consider the document to have been validly served if it is satisfied that the document came to the notice of the person to be served or that it would have come to that person's notice except for the person's avoidance of service. |
147. Lorsqu'un document a été signifié d'une manière non autorisée par les présentes règles ou une ordonnance de la Cour, celle-ci peut considérer la signification comme valide si elle est convaincue que le destinataire en a pris connaissance ou qu'il en aurait pris connaissance s'il ne s'était pas soustrait à la signification. |
[6] Even if one assumes that this rule allows service under the Hague Convention to be overridden in maritime law, I think that in this instance the plaintiffs are confronted with two major difficulties.
[7] First, contrary to the circumstances examined in Canada v. Trudgeon, [2001] F.C.J. No. 943 (F.C.T.D.) and J.A. Besner et al. v. Vinalink et al., [2001] F.C.J. No. 1553, the only evidence for the purpose of clearly establishing that the owners of the vessel did indeed receive the statement of claim in this proceeding on July 16, 2001, is an acknowledgement of receipt of a post that was sent at the time by the former counsel for the plaintiffs, an acknowledgement of receipt that the plaintiffs' present counsel attach as exhibit A to their affidavit.
[8] But this acknowledgement of receipt does not state anywhere that what was delivered was indeed the statement of claim in the action. Furthermore, the signature, not to say the name in capital letters of the signatory, do not indicate whether these are the owners or the manager of the vessel in question.
[9] I am unable, therefore, to say that I am satisfied under Rule 147 that the statement of claim in this action came to the notice of the person to be served.
[10] But there is more. Rule 147 does not resolve an additional problem that the plaintiffs have in this case, namely, the period elapsed since the issuance of the statement of claim in which service of this statement of claim was to be attempted. This problem exists in relation to both the request for validation of the communication of July 16, 2001, and the request in the alternative for an extension as such of the period for service of the statement of claim.
[11] In this regard, the very events cited by the plaintiffs - that both the disputed bill of lading on which the action is based and the statement of defence filed by the other defendants refer to the fact that these other defendants were only mandataries of the vessel's owners - were such as to prompt the plaintiffs to serve their action on the vessel's owners forthwith. The period elapsed, at least since the filing of the statement of defence by the other defendants, on April 9, 2001, and the lack of evidence of an ongoing intention on the part of the plaintiffs to sue the owners, mean that it is not in the interests of justice to grant either of the remedies sought by the plaintiffs. (See Registered Public Accountants Association of Alberta v. Society of Professional Accountants of Canada et al. (2000), 5 C.P.R. (4th) 527.)
[12] This motion is therefore dismissed.
"Richard Morneau"
Prothonotary
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021206
Docket: T-383-01
ADMIRALTY ACTION IN REM AGAINST THE VESSEL "CAPE NORMAN" AND IN PERSONAM AGAINST MEDITERRANEAN SHIPPING COMPANY AND THE OWNERS AND ALL OTHER PERSONS HAVING A RIGHT IN THE VESSEL "CAPE NORMAN"
Between:
DEL MONTE FRESH PRODUCE N.A., INC.,
DEL MONTE FRESH PRODUCE, DEL MONTE (CANADA) INC., DEL MONTE FRESH PRODUCE (S.A.) (PTY) LTD.,
and DEL MONTE FRESH PRODUCE INTERNATIONAL INC.
Plaintiffs
and
MEDITERRANEAN SHIPPING COMPANY,
MEDITERRANEAN SHIPPING COMPANY (USA) INC., MEDITERRANEAN SHIPPING COMPANY (PTY) LTD., CAPE NORTH NAVIGATION INC. c/o COLUMBIA SHIPMANAGEMENT (NETHERLANDS) b.v.,
THE VESSEL "CAPE NORMAN" and
THE OWNERS AND ALL OTHER PERSONS
HAVING A RIGHT IN THE VESSEL "CAPE NORMAN"
Defendants
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-383-01
STYLE: ADMIRALTY ACTION IN REM AGAINST THE VESSEL "CAPE NORMAN" AND IN PERSONAM AGAINST MEDITERRANEAN SHIPPING COMPANY AND THE OWNERS AND ALL OTHER PERSONS HAVING A RIGHT IN THE VESSEL "CAPE NORMAN"
Between:
DEL MONTE FRESH PRODUCE N.A., INC.,
DEL MONTE FRESH PRODUCE, DEL MONTE (CANADA) INC., DEL MONTE FRESH PRODUCE (S.A.) (PTY) LTD.,
and DEL MONTE FRESH PRODUCE INTERNATIONAL INC.
and
MEDITERRANEAN SHIPPING COMPANY,
MEDITERRANEAN SHIPPING COMPANY (USA) INC., MEDITERRANEAN SHIPPING COMPANY (PTY) LTD., CAPE NORTH NAVIGATION INC. c/o COLUMBIA SHIPMANAGEMENT (NETHERLANDS) b.v.,
THE VESSEL "CAPE NORMAN" and
THE OWNERS AND ALL OTHER PERSONS
HAVING A RIGHT IN THE VESSEL "CAPE NORMAN"
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 2, 2002
REASONS FOR ORDER OF MR. RICHARD MORNEAU, PROTHONOTARY
DATED: December 6, 2002
Page: 2
APPEARANCES:
Alexander Sami for the plaintiffs
SOLICITORS OF RECORD:
Gowling Lafleur Henderson for the plaintiffs
Montréal, Quebec
Brisset Bishop for the defendants
Montréal, Quebec