BETWEEN:
MARITIMA DE ECOLOGIA, S.A. de C.V.
and
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP MAERSK DEFENDER ALSO KNOWN AS
VOYAGER SEA, I.S. ATLANTIC CORPORATION INC.,
I.S. PACIFIC CORPORATION INC. and
SECUNDA MARINE SERVICES LTD.
Heard at Montreal, Quebec, on April 17, 2007.
Judgment delivered at Ottawa, Ontario, on May 18, 2007.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: DESJARDINS J.A.
NOËL J.A.
Docket: A-599-06
Citation: 2007 FCA 194
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
MARITIMA DE ECOLOGIA, S.A. de C.V.
Appellant
and
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP MAERSK DEFENDER ALSO KNOWN AS
VOYAGER SEA, I.S. ATLANTIC CORPORATION INC.,
I.S. PACIFIC CORPORATION INC. and
SECUNDA MARINE SERVICES LTD.
Respondents
REASONS FOR JUDGMENT
[1] Before us are an appeal and a cross-appeal from a decision of Shore J. of the Federal Court, dated December 22, 2006, pursuant to which he struck out the in rem portions of two Statements of Claim filed by the appellant and stayed the in personam portions thereof.
[2] For the reasons that follow, I conclude that the appeal should be dismissed and that the cross-appeal should be allowed.
The Facts
[3] The appellant, a Mexican corporation, is in the business of designing, developing and providing to the Mexican offshore oil exploration and production industry, specialized ships known as “well-testing ships” or “ecological ships” for the purpose of, inter alia, minimizing environmental damage.
[4] One of the appellant’s clients is Pemex Exploracion y Produccion (“Pemex”), a Mexican government-owned oil company. Prior to the events which have given rise to these proceedings, two well-testing ships, namely the TOISA PISCES and the BOURBON OPALE were provided by the appellant to Pemex in fulfillment of its contractual obligations. The TOISA PISCES was chartered from Sealion Shipping Ltd. of Farnham, England, and the BOURBON OPALE from Bourbon Offshore Norway, Fosnavaj, Norway. Both ships, prior to their delivery to Pemex, were redesigned and converted so as to enable the appellant to meet Pemex’s specific needs.
[5] In late 2005, Pemex informed the appellant that it was interested in obtaining the use of a third “well-testing ship”. With that purpose in mind, the appellant entered into discussions with the respondent Secunda Marine Services Ltd. (“Secunda”) of Dartmouth, Nova Scotia, with a view to finding a suitable vessel for delivery to Pemex.
[6] On March 10, 2006, Secunda advised the appellant that it had entered into a binding contract pursuant to which Secunda or a company controlled by Secunda would purchase the Danish vessel Maersk Defender and that it would make the vessel available to the appellant for a period of 1,826 days. Secunda also advised the appellant that the vessel would be renamed Voyager Sea.
[7] During the course of the discussions between Secunda and the appellant, it was agreed that following the purchase of the MAERSK DEFENDER, the vessel would be modified so as to meet Pemex’s requirements. More particularly, it was agreed that the new owners would spend approximately $40 million on conversion work and that upon completion of the work, the vessel would be delivered to the appellant in Mexico between June 18 and August 18, 2007.
[8] By Memorandum of Agreement dated March 2006, the owners of the Maersk Defender, A.P. Moller-Maersk A/S, agreed to sell their vessel to Secunda and to the respondent I.S. Atlantic Corporation Inc. (“Atlantic”).
[9] On July 5, 2006, the appellant entered into a charter party in the Bimco supplytime charter party form (the “charter party”) with Atlantic pursuant to which Atlantic agreed and undertook, inter alia, to deliver the ship to the appellant in Mexico between June 18 and August 18, 2007. Clause 46 of the charter party specifically provides that the vessel has been sublet by the appellant to Pemex pursuant to Pemex contract no. 418236908 and that Atlantic has consented to the subcharter in accordance with clause 17 of the charter party.
[10] In early November 2006, Atlantic obtained information which led it to fear that Mexican authorities would not issue a navigation permit to their vessel, a foreign flagged vessel, for a period longer than two years. As a result, Atlantic advised the appellant that the charter party had been frustrated and that, in any event, it was excused from performance by reason of force majeure.
[11] In the event, Atlantic did not purchase the Maersk Defender in December 2006 as it had undertaken to do. The vessel was purchased by the respondent I.S. Pacific Corporation (“Pacific”) on December 12, 2006, renamed the Emerald Sea and chartered to Helix Energy Solutions Group Inc. (“Helix”).
[12] On December 1, 2006, the appellant invoked the London Arbitration clause of the charter party (clause 31), delivered notice to Atlantic of its decision to arbitrate in London and appointed, as required by the arbitration clause, a London arbitrator. Specifically, the appellant called upon Atlantic to appoint its arbitrator within 14 days failing which the appellant’s arbitrator would be appointed to act as sole arbitrator.
[13] On December 4, 2006, for the sole purpose of obtaining interim protective orders and security in respect of the London Arbitration, the appellant commenced an action in the Federal Court (file T-2142-06) against the owners and all others interested in the ship MAERSK DEFENDER, also known as the VOYAGEUR SEA, and also against Atlantic and Secunda.
[14] On December 12, 2006, the appellant commenced a second action in the Federal Court (file T-2185-06), an action identical to the first one except for the addition as a defendant of the respondent Pacific. Like the first action, the second action was instituted for the sole purpose of obtaining interim protective orders and security in respect of the London Arbitration.
[15] I point out that on December 4, 2006, when the appellant commenced its first action in the Federal Court, the Maersk Defender had not yet been sold to Pacific. As to the second action, commenced on December 12, 2006, it appears that the appellant was not aware at that time of the sale of the vessel to Pacific. As a result, the appellant sought in both actions, at paragraphs 14 and 15 respectively of its Statements of Claim, orders requiring specific performance of the charter party and delivery of the vessel to Atlantic by December 10, 2006. Further, the appellant sought orders enjoining and restraining the respondents from impeding, preventing or interfering with the passing of title to and delivery of possession of the ship to Atlantic from A.P. Moller-Maersk A/S.
[16] On December 12, 2006, in action T-2185-06, the vessel was arrested in Vancouver. At the time of the arrest, the vessel was owned by Pacific which had purchased it earlier in the day from A.P. Moller-Maersk A/S.
[17] On December 14, 2006, the respondents filed motions in both actions seeking the following orders:
· Pacific sought the dismissal of the in rem portion of the Statements of Claim and the release from arrest of its vessel;
· Pacific also sought the dismissal of the in personam portion of the Statement of Claim filed in action T-2185-06;
· Secunda sought the dismissal of the in personam portion of both Statements of Claim;
· Atlantic also sought the dismissal of the in personam portion of both Statements of Claim and, in the alternative, that the proceedings be stayed pending arbitration in London.
Decision Below
[18] The motions were heard on December 21, 2006, and on the following day, Shore J. made the Order which is the subject of this appeal.
[19] First, with respect to the in rem proceedings, the Judge concluded that the Court’s jurisdiction in rem could not be exercised against the ship because the requirements of subsection 43(3) of the Federal Courts Act (the “Act”) had not been met. Further, relying on this Court’s decision in Paramount Enterprises International Inc. v. An Xin Jiang (The), 2000 F.C.J. No. 2066 (F.C.A.) (Q.L.), he concluded that the requirements of subsection 43(2) of the Act had not been met and hence, that the vessel was not “the subject of the action” within the meaning of the subsection. On the basis of these conclusions, the learned Judge struck the in rem proceedings and ordered the release from arrest of the vessel.
[20] Second, relying on section 50 of the Act and the London Arbitration clause, the Judge stayed the in personam proceedings in both actions.
[21] The appellant challenges the Judge’s Order in regard to both the in rem and in personam proceedings. The cross-appellants, the respondents Secunda and Pacific, challenge only the in personam portion of the Judge’s Order. Secunda seeks an order striking both actions and Pacific seeks an order striking the appellant’s action in T-2185-06.
[22] I should add that shortly prior to the hearing, the parties informed us that the appellant had accepted Atlantic’s repudiation of the charter party. As a result, the appellant continues to seek damages against Atlantic, which is the subject of the London Arbitration proceedings, but no longer seeks specific performance of the charter party.
The in rem Proceedings
[23] I begin with the in rem proceedings which the Judge struck because of his view that the requirements of subsections 43(2) and 43(3) of the Act had not been met. These provisions and subsection 43(1) of the Act are relevant to the disposition of this appeal and they read as follows:
|
43. (1) Subject to subsection (4), the jurisdiction conferred on the Federal Court by section 22 may in all cases be exercised in personam.
(2) Subject to subsection (3), the jurisdiction conferred on the Federal Court by section 22 may be exercised in rem against the ship, aircraft or other property that is the subject of the action, or against any proceeds from its sale that have been paid into court.
(3) Despite subsection (2), the jurisdiction conferred on the Federal Court by section 22 shall not be exercised in rem with respect to a claim mentioned in paragraph 22(2) ( e), ( f), ( g), ( h), ( i), ( k), ( m), ( n), ( p) or ( r) unless, at the time of the commencement of the action, the ship, aircraft or other property that is the subject of the action is beneficially owned by the person who was the beneficial owner at the time when the cause of action arose.
[Emphasis added]
|
43. (1) Sous réserve du paragraphe (4), la Cour fédérale peut, aux termes de l'article 22, avoir compétence en matière personnelle dans tous les cas.
(2) Sous réserve du paragraphe (3), elle peut, aux termes de l'article 22, avoir compétence en matière réelle dans toute action portant sur un navire, un aéronef ou d'autres biens, ou sur le produit de leur vente consigné au tribunal.
(3) Malgré le paragraphe (2), elle ne peut exercer la compétence en matière réelle prévue à l'article 22, dans le cas des demandes visées aux alinéas 22(2) e), f), g), h), i), k), m), n), p) ou r), que si, au moment où l'action est intentée, le véritable propriétaire du navire, de l'aéronef ou des autres biens en cause est le même qu'au moment du fait générateur.
[Je souligne] |
[24] Also of relevance are subsections 22(1) and paragraph 22(2)(i) of the Act, which provide:
|
22. (1) The Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.
(2) Without limiting the generality of subsection (1), for greater certainty, the Federal Court has jurisdiction with respect to all of the following: … (i) any claim arising out of any agreement relating to the carriage of goods in or on a ship or to the use or hire of a ship whether by charter party or otherwise;
[Emphasis added]
|
22. (1) La Cour fédérale a compétence concurrente, en première instance, dans les cas — opposant notamment des administrés — où une demande de réparation ou un recours est présenté en vertu du droit maritime canadien ou d'une loi fédérale concernant la navigation ou la marine marchande, sauf attribution expresse contraire de cette compétence.
(2) Il demeure entendu que, sans préjudice de la portée générale du paragraphe (1), elle a compétence dans les cas suivants : … (i) une demande fondée sur une convention relative au transport de marchandises à bord d’un navire, à l’usage ou au louage d’un navire, notamment par charte-partie;
[Je souligne] |
[25] With respect to subsection 43(2), there can be no doubt that the Judge erred in law. When the Judge rendered his Order, the Supreme Court of Canada had not yet rendered its decision in Phoenix Bulk Carriers Ltd. v. M/V Swift Fortune (The), [2007] SCC 13, which overturned this Court’s decision in Paramount, supra. Because of his reliance on Paramount, supra, the Judge concluded that the vessel was not “the subject of the action”. In Phoenix, supra, the Supreme Court rejected the narrow view adopted by this Court in Paramount, supra, with respect to the meaning of the words “the subject of the action” found in subsection 43(2) of the Act for a broader approach which I framed in the following terms at paragraph 47 of our decision in Kremikovtzi Trade v. Phoenix Bulk Carriers Limited et al, 2006 FCA 1:
[47] I am therefore of the view that subsection 43(2) does not require a physical nexus between the cargo and the vessel in order to give rise to in rem rights. Rather, subsection 43(2) proposes identifiability of the property as the controlling factor so as to ensure that the scope of the in rem proceedings is not unduly enlarged. In other words, the action in rem must relate to the specific property contemplated in the contract at issue. To the extent that the cargo can be clearly identified as being the one contemplated under the contract, the breach of which is alleged by Phoenix in its Statement of Claim (as was alleged by Paramount in Paramount, supra), the cargo under arrest is the "subject of the action". I should emphasize that there is no issue in this appeal with regard to the identity of the cargo arrested by Phoenix.
[Emphasis added]
[26] On the facts before us, no conclusion other than that the Maersk Defender is “the subject of the action” is possible. However, that conclusion does not put an end to the discussion of whether the jurisdiction conferred on the Federal Court by section 22 of the Act could be exercised in rem against the vessel. I now turn to a discussion of subsection 43(3).
[27] For this part of the discussion, I begin by pointing out that the arbitration proceedings in London concern a dispute between the appellant and Atlantic, that no other party is involved in the arbitration and that the proceedings commenced in Canada by the appellant do not seek any remedy against any of the respondents other than the remedies which I outlined in paragraph 15 of these Reasons, namely remedies pertaining to specific performance of the charter party. As I have already indicated, the appellant no longer seeks such remedies by reason of its acceptance of Atlantic’s repudiation of the charter party.
[28] I further point out that at the time of its arrest on December 12, 2006, the vessel did not belong to Atlantic but to Pacific. Prior to December 12, 2006 and, in any event, between December 1 and 12, 2006, the vessel belonged to A.P. Moller-Maersk A/S.
[29] The question which thus arises is whether in those circumstances the appellant was entitled to commence in rem proceedings against the vessel and to arrest it? In my view, the appellant was not so entitled.
[30] Subsection 43(2) of the Act clearly states that, subject to subsection (3), the Court may exercise in rem jurisdiction against a ship “that is the subject of the action”. However, subsection (3) provides that with regard to certain claims and, namely those arising under paragraph 22(2)(i), the jurisdiction in rem can only be exercised where, at the time of the commencement of the action, the ship is “beneficially owned by the person who was the beneficial owner at the time when the cause of action arose”. In other words, before the Court can exercise its jurisdiction in rem, it must be demonstrated that the beneficial owner of the ship was the same at the time the cause of action arose and when the action was commenced.
[31] As the Judge was of the view that the appellant’s cause of action arose on December 1, 2006, he had no difficulty concluding that the requirements of subsection 43(3) had not been met in that the beneficial owner of the ship at the time the cause of action arose was not the beneficial owner of the ship when the action was commenced. In my view, in so concluding, the Judge made no error. I am satisfied, on the facts before us, that the appellant’s cause of action did arise on December 1, 2006.
[32] In any event, the fact that the beneficial ownership of the ship may have been the same at the two relevant dates is not sufficient to confer in rem jurisdiction on the Federal Court. The law is clear that the Court’s jurisdiction in rem can only be exercised against a ship where there is in personam liability on the part of its owner. In other words, unless the owner’s liability is engaged, the Federal Court’s in personam jurisdiction under section 22 and subsection 43(1) of the Act cannot be exercised in rem against the ship.
[33] That view was enunciated by Collier J. in Westcan Stevedoring Ltd. v. Armar (The), [1973] F.C. 1232 (F.C.T.D.), where the learned Judge explained that it was not permissible for the Court to exercise in rem jurisdiction under 43(2) against a vessel whose owner had no personal liability towards the claimant. In the Judge’s opinion, it was the owner’s in personam liability which allowed the Court to exercise its jurisdiction in rem against the ship.
[34] More recently, that point of view was reaffirmed by this Court in Feoso Oil Ltd. v. Ship “Sarla” (1995), 184 N.R. 307. At issue in Feoso Oil, supra, was whether the owners of the ship were entitled to a summary judgment dismissing the action brought against them in rem by the supplier of unpaid bunkers. The shipowners argued that as there was no privity of contract between them and the supplier, the Court’s jurisdiction could not be exercised in rem against their vessel.
[35] In concluding that there was a “genuine issue” of fact which only a trial could resolve and, hence, dismissing the shipowners’ motion for summary judgment, the Court made it clear that its jurisdiction under paragraph 22(2)(m) of the Act, i.e. “any claim in respect of goods, materials or services wherever supplied to a ship for the operation or maintenance of the ship, including, without restricting the generality of the foregoing, claims in respect of stevedoring and lighterage”, could not be exercised in rem unless there was liability on the part of the ship’s owners. At paragraphs 10 and 11 of his Reasons for the Court, Stone J.A. explained the principle in the following terms:
[10] Although the issue in this appeal goes to the correctness of the order, it is important to understand the principles of Admiralty law upon which the case and its merits must ultimately turn. According to the appellant, the bunkers in question were supplied to the defendant Ship upon a request made by or on behalf of owners and therefore that the appellant is entitled to proceed by way of this action in rem. The court’s jurisdiction over such a claim is conferred by s. 22(2)(m) of the Federal Court Act, which reads:
(m) Any claim in respect of goods, materials or services wherever supplied to a ship for the operation or maintenance of the ship, including, without restricting the generality of the foregoing, claims in respect of stevedoring and lighterage;
The goods and services of the kind referred to in this paragraph are sometimes described as “necessaries”, a term which appeared in former enactments of the United Kingdom. By virtue of subsections 43(2) and (3) of the Act, the jurisdiction conferred by s. 22(2)(m) shall not be exercised in rem:
… unless, at the time of the commencement of the action, the ship, aircraft or other property that is the subject of the action is beneficially owned by the person who was the beneficial owner at the time when the cause of action arose.
[11] What is clear from these provisions is that the right to proceed in rem for a claim falling within paragraph 22(2)(m) [NOTE: the same goes with respect to a claim falling within paragraph 22(2)(i)] exists only if at the time the action is commenced the ship is beneficially owned by the person who was the beneficial owner at the time the cause of action arose. (see Mount Royal/Walsh Inc. v. Ship Jensen Star et al., [1990] F.C. 199; 99 N.R. 42 (F.C.A.)). There is further refinement. It is well established that the fact that beneficial ownership has not changed since the necessaries were supplied is not in itself sufficient to support a statutory right in rem. The cases are all to the same effect, that it is only where the owners of a ship have incurred a debt for necessaries supplied that the creditor acquires a right to proceed in rem against their ship. Thus, in Ship Tolla, Re. [1921] P. 22, a claim for necessaries was asserted in an action in rem for expenses incurred at the request of the master while the ship was under a time charter. At page 24, Hill J. stated the applicable principle as follows:
Unless there is a liability on the part of the owners there cannot be a remedy in rem against the ship.
(See also e.g. Westcan Stevedoring Ltd. v. Ship Armar, [1973] F.C. 1232 (T.D.) and the Jensen Star, supra) In the case at bar, unless it be exceptional, application of the above principle will mean that the appellant could not sustain an action in rem in the absence of proof that the bunkers were supplied to the defendant Ship at the request of owners or by someone acting on their behalf and in a position to bind them.
[Emphasis added]
[36] On the basis of these authorities, I must conclude that the Court could not exercise in rem jurisdiction against the vessel. The only claim asserted by the appellant is that which is being asserted in the London Arbitration against Atlantic and in respect of which the appellant has commenced actions in the Federal Court in order to obtain interim protection. As I have already made clear, Atlantic is not and has never been the owner of the MAERSK DEFENDER. Consequently, whatever the validity of the appellant’s claim against Atlantic, the MAERSK DEFENDER cannot be arrested in respect of that claim. At all material times herein, the vessel was owned by A.P. Moller-Maersk A/S and the respondent Pacific. The appellant has not commenced any proceedings, nor has it sought any remedies, against these parties. Consequently, it is my view that there is simply no basis, on the facts before us, which would allow the Court to exercise in rem jurisdiction against the vessel.
[37] Even assuming that the appellant’s cause of action arose on December 12, 2006, i.e. the date on which it commenced its second action and arrested the vessel, the appellant still does not succeed since it has asserted no claim, nor sought any remedy, against Pacific. Thus, the Judge made no error when he struck the in rem portion of the Statements of Claim and ordered the release from arrest of the vessel.
The in Personam Proceedings
[38] I now turn to the in personam proceedings which the Judge stayed pending London Arbitration. I begin by setting out Articles 8 and 9 of the Commercial Arbitration Code (the “Code”), which is a schedule to the Commercial Arbitration Act, R.S. 1985, c. 17 (2nd Supp. Schedule), which provide as follows:
|
ARTICLE 8 Arbitration Agreement and Substantive Claim before Court
(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.
ARTICLE 9 Arbitration Agreement and Interim Measures by Court
It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure. |
ARTICLE 8. Convention d’arbitrage et actions intentées quant au fond devant un tribunal
1. Le tribunal saisi d’un différend sur une question faisant l’objet d’une convention d’arbitrage renverra les parties à l’arbitrage si l’une d’entre elles le demande au plus tard lorsqu’elle soumet ses premières conclusions quant au fond du différend, à moins qu’il ne constate que la convention est caduque, inopérante ou non susceptible d’être exécutée.
2. Lorsque le tribunal est saisi d’une action visée au paragraphe 1 du présent article, la procédure arbitrale peut néanmoins être engagée ou poursuivie et une sentence peut être rendue en attendant que le tribunal ait statué.
ARTICLE 9. Convention d’arbitrage et mesures provisoires prises par un tribunal
La demande par une partie à un tribunal, avant ou pendant la procédure arbitrale, de mesures provisoires ou conservatoires et l’octroi de telles mesures par un tribunal ne sont pas incompatibles avec une convention d’arbitrage.
|
[39] Relying on Article 9 of the Code, the appellant submits that the learned Judge erred in staying the in personam proceedings because, as a result, it will be prevented from obtaining interim measures of protection pending the London Arbitration.
[40] The respondents argue that the Judge made no error in staying the two actions, as he was bound to do so by reason of Article 8 of the Code. Further, the respondents Secunda and Pacific, the cross-appellants, say that the appellant is not entitled under Article 9 of the Code to interim relief in support of a foreign arbitration against entities which are not parties to the arbitration and from whom no relief is sought. They further say that the Judge ought not to have stayed the proceedings commenced against them, but ought to have dismissed them on the ground that they reveal no cause of action.
[41] Specifically, Secunda and Pacific say that the appellant has not brought any action against them since the only purpose of the actions commenced in the Federal Court is to protect the appellant’s rights against Atlantic. At paragraph 82 of their Memorandum of Fact and Law, the cross-appellants say:
82. The Appellant has not brought any action in the Federal Court with the exception of T-2142-06 and T-2185-06 that have been brought solely in support of the London Arbitration. Neither Secunda nor Pacific are even parties to the London Arbitration and the Appellant has not sought any determination involving them or sought any relief from them in that arbitration. In other words, the Appellant has not requested any determination of the merits of any allegations against Secunda or Pacific either in this Court or the London Arbitration. Accordingly, it is plain and obvious that there is no cause of action against Secunda or Pacific and the claims must be struck out.
[42] In response to these submissions, the appellant asserts that in personam claims against Secunda and Pacific are sustainable and valid in law. More particularly, the appellant says that it has pleaded that the vessel was wrongly transferred to Pacific and that the purpose of the transfer was to avoid performance of the charter party (see paragraph 10 of action T-2185-06). The appellant adds that when that allegation is read in conjunction with its claim for damages found at paragraph 1(d) of the Statements of Claim and that Secunda guaranteed Atlantic’s obligations, it is obvious that it has pleaded sufficient facts to support a cause of action.
[43] In my view, the submissions made by Secunda and Pacific must be right. It is clear from the pleadings themselves that the appellant has not commenced an action against either of these respondents. Paragraph 13 of the first action and paragraph 14 of the second action are clear and unambiguous. They read as follows:
This action is brought solely for the purpose of obtaining interim protective orders including injunctions and security, in connection with the London Arbitration.
[Emphasis added]
[44] In other words, the appellant has brought these proceedings for the sole purpose of obtaining security in respect of its London Arbitration proceedings commenced against Atlantic. It has not brought any action against Secunda or Pacific, nor does it seek any remedy against these respondents. Consequently, the proceedings reveal no cause of action against Secunda and Pacific and they must be struck.
[45] With respect to the proceedings commenced against Atlantic, they must be stayed as required by Article 8 of the Code unless they can be justified under Article 9 thereof. Because the appellant has accepted Atlantic’s repudiation of the charter party, the remedies sought by the appellant in its Statements of Claim, namely interim and interlocutory injunctions requiring specific performance of the charter party and/or enjoining and restraining the defendants from impeding, preventing or interfering with the passing of title to and delivery of possession of the ship to Atlantic from A.P. Moller-Maersk A/S are no longer sought. As a result, the proceedings presently seek no interim measure of protection in respect of the London Arbitration.
[46] The appellant says that the stay should be lifted because it may, in the future, seek other injunctions or court orders and even possibly arrest the ship in order to obtain security for its damages against Atlantic. The appellant says that unless the stay is lifted, it cannot seek interim security.
[47] As I indicated earlier, as the Statements of Claim presently stand, they seek no remedy whatsoever in connection with the London Arbitration. Hence, it cannot be said that these proceedings fall within Article 9 of the Code. Consequently, I find that the Judge made no error in staying them. Should the appellant, at a later date, have grounds to seek an interim measure of security in connection with the London Arbitration, it may apply to the Court for an order lifting the stay or it may, if it prefers, institute separate proceedings seeking a precise remedy.
[48] I would also add that nothing prevented nor prevents the appellant from commencing legal proceedings against both Secunda and Pacific for breach of the charter party and for tortious interference in respect thereof.
Disposition
[49] For these reasons, I would therefore dismiss the appeal, allow the cross-appeal and rendering the order which ought to have been rendered, I would strike the in personam actions insofar as they are directed at the respondents Secunda and Pacific. I would also grant the respondents their costs herein and below.
“I concur.
Alice Desjardins J.A.”
“I agree.
Marc Noël J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-599-06
STYLE OF CAUSE: Maritima de Ecologia, S.A. de C.V. v. the owners and all others interested in the ship MAERSK DEFENDER et al.
PLACE OF HEARING: Montreal, Québec
DATE OF HEARING: 17-April-2007
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: DESJARDINS J.A.
APPEARANCES:
|
FOR THE APPELLANT
|
|
|
Ms. Jane O'Neill |
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
Alexander Holburn Deaudin & Lang LLP, Vancouver, BC
|
FOR THE APPELLANT
|
|
Halifax, NS |
FOR THE RESPONDENTS
|