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Date: 20010905

Docket: T-793-00

Neutral citation: 2001 FCT 994

Toronto, Ontario, Wednesday the 5th day of September, 2001

PRESENT:      Peter A.K. Giles, Esquire

Associate Senior Prothonotary

BETWEEN:

McCAIN PRODUCE INC. and

R.L. SEALE & CO. LTD.

Plaintiffs

-and-

VISSER POTATO LTD.,

NOVA LIGURIA SHIPPING CO. LTD.,

SEATRADE REEFER CHARTERING N.V.,

DAMMERS SHIPMANAGEMENT N.V., and

THE VESSEL "M.V. NOVA LIGURIA",

Her Owners and Charterers

Defendants

                                      REASONS FOR ORDER AND ORDER

GILES A.S.P.:


[1]        Before me is an ex parte motion by the Plaintiffs for judgment in default of defence against the Defendants Nova Liguria Shipping Co. Ltd., Dammers Shipmanagement N.V. and The Vessell "M.V. NOVA LIGURIA", Her Owners and Charterers; that is to say, some but not all of the Defendants. These Defendants were served and the certificate of the Government of the Netherlands was offered in proof. That certificate does not show what documents were served or where.

[2]        I am prepared for the purposes of this order to assume that the served document was a statement of claim and a summary of it in the Dutch language. It is much as service was affected by the good offices of a Ministry of the Government of the Netherlands, I assume also that the ship was not served in Canada. I can find no authority for the service of a ship outside Canada nor for the service of a ship other than in an action in rem. The statement of claim is not styled in rem.

[3]        Because there has not been proper service on the ship the motion must be dismissed. The Plaintiffs have filed in their motion record copies of the defence of two of the Defendants who have defended. From them it is apparent that the claim arises from loss to a cargo and it is alleged that the bill of lading contained a clause which in effect required disputes to be arbitrated in Rotterdam pursuant to Dutch law. This point should be covered in any future motion as should the desirability of a judgment with a reference.


                                                                 ORDER

1.         Motion dismissed.      

                                                                                                "Peter A.K. Giles"

                                                                                                                                      A.S.P.                       

Toronto, Ontario

September 5, 2001


                                          FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                          T-793-00

STYLE OF CAUSE:                               McCAIN PRODUCE INC. and R.L. SEALE & CO. LTD.

Plaintiffs

-and-

VISSER POTATO LTD.,

NOVA LIGURIA SHIPPING CO. LTD.,

SEATRADE REEFER CHARTERING N.V.,

DAMMERS SHIPMANAGEMENT N.V., and

THE VESSEL "M.V. NOVA LIGURIA",

Her Owners and Charterers

Defendants

CONSIDERED AT TORONTO, PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES 1998.

REASONS FOR ORDER

AND ORDER BY:                                  GILES A.S.P.

DATED:                                                WEDNESDAY, SEPTEMBER 5, 2001

WRITTEN SUBMISSIONS BY:             Mr. John C.F. Hunt

For the Plaintiffs

Mr. Nigel H. Frawley

For the Defendants

SOLICITORS OF RECORD:                 BLACK, SUTHERLAND, CRABBE LLP

Barristers & Solicitors

401 Bay Street

Suite 2700, P.O. Box 101

Toronto, Ontario

M5H 2Y4

For the Plaintiffs

BORDEN LADNER GERVAIS LLP

Barristers & Solicitors

Scotia Plaza, 40 King Street West

Toronto, Ontario

M5H 3Y4

For the Defendants


FEDERAL COURT OF CANADA

                               Date: 20010905

                                                                                                    Docket: T-793-00

Between:

McCAIN PRODUCE INC. and

R.L. SEALE & CO. LTD.

Plaintiffs

-and-

VISSER POTATO LTD.,

NOVA LIGURIA SHIPPING CO. LTD.,

SEATRADE REEFER CHARTERING N.V., DAMMERS SHIPMANAGEMENT N.V., and THE VESSEL "M.V. NOVA LIGURIA",

Her Owners and Charterers

Defendants

                                                 

REASONS FOR ORDER

AND ORDER

                                                 


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