Digests

DSL Corp. v. Handy Prince (The)

T-854-02

2003 FC 1061, Hargrave P.

15/9/03

9 pp.

Simplified action involving claim of about US$14,000 for damage to steel pipe carried from Turkey to Houston, Texas, action having been commenced on last minute instruction of cargo underwriters in order to prevent running of limitation against plaintiff, who had been able to obtain time extension from owner, but not from charterer--Present motion to either set aside ex juris service of statement of claim on Bulk Atlantic Inc. and Handy Prince Ltd. or stay proceeding, on grounds no real and substantial connection, or legal nexus between this matter and Canada and thus Federal Court has no jurisdiction--Defendants relying upon Oy Nokia Ab v. The Martha Russ, [1973] F.C. 394 (T.D.), for proposition that, in case of action in personam, there must be real and substantial connection, or legal nexus, between carriage and Canada and between parties and Canada before Federal Court has jurisdiction over foreign entities--Plaintiff relying upon United Nations v. Atlantic Seaways Corp., [1979] 2 F.C. 541 (C.A.), for proposition jurisdiction in personam, in respect of cargo claim, containing no qualification, express or implied, based on place where cause of action arose, so long as claim falling within one of categories of jurisdiction specified in Federal Court Act, s. 22(2)--Initially, material available to plaintiff indicated Atlantic Maritime Co. Inc., of Montreal, Quebec, were charterers of Handy Prince--Atlantic Maritime, by correspondence to plaintiff's counsel, advised they were merely brokers for Bulk Atlantic Inc., of Marshall Islands, time charterer of Handy Prince--This advice, of June 21, 2002 followed up by various documents from Atlantic Maritime on June 26, 2002, i.e. portion of charterparty, letter from another broker and letter from Bulk Atlantic Inc. all to effect Bulk Atlantic Inc. indeed time charterer--Had matter rested there, position taken by defendants certainly strong-- However agents involved with vessel in Houston, Texas, American Shipping and Chartering, advised cargo underwriters their principals were Atlantic Maritime of Montreal, Quebec--Atlantic Maritime of Montréal, previously characterized as broker, thus held out not only as broker but also as agent for Bulk Atlantic Inc. who would deal with claim--Broker is agent primarily employed to negotiate contract between two parties--Here, position of Atlantic Maritime, that of being held out as claim settling agent for charterer, Bulk Atlantic goes beyond that of broker for Atlantic Maritime--That plaintiff invited to deal with Atlantic Maritime, in Montréal, some form of act and conduct tying matter to Canada--In alternative Atlantic Seaways still being good law, no qualification on in personam jurisdiction under Act, s. 22, so long as claim falls, as it does here, within one of specific categories--Cargo claim in personam extends to cause of action arising outside of Canada, for as Court of Appeal pointed out, Federal Court Act contains no qualification, express or implied, based on place where cause of action arises--Defendants given 21 days within which to file their defences--One set of costs to plaintiff, payable jointly by defendants in any event of cause--Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 22(2).