MARITIME LAW |
Practice |
Trans Tec Services Inc. v. Lyubov Orlova (The)
T-1723-00
2001 FCT 958, MacKay J.
28/8/01
11 pp.
Motion for summary judgment pursuant to Federal Court Rules, 1998, r. 213(2)--Plaintiff, supplier of fuel (bunkers) to ships, commencing action based on contract for provision of bunkers between it and former charterer of defendant ship, MSCI--MSCI contracted with Marine Expeditions (ME) to provide defendant ship, fully crewed and supplied, to carry latter's travel tourists--Charter to MSCI terminated for financial reasons, and ME became sub-charterer of defendant ship by agreement with another company to which vessel's owners had granted time charter--Plaintiff demanding payment of MSCI's account in relation to several ships--On May 30, 2000, Dugald Wells, director and officer of Marine Expeditions Inc. proposing by letter arrangements for payments of outstanding debts of MSCI in respect of several vessels, including defendant ship--Plaintiff neither rejecting nor agreeing with proposal--Marine Expeditions Inc. making payments as proposed--Two payments received by plaintiff, but applied to oldest MSCI debt i.e. with respect to bunkers provided to other vessels--Plaintiff claiming right, pursuant to standard form of contract incorporated in its contract with MSCI, to apply payments to debts owed by MSCI on account of supplies to other ships--After this action initiated Lyubov Orlova arrested--Motion allowed--Matter not one of credibility of witnesses, but of contract issues, i.e. whether plaintiff had right to enforce against third party, contract made with MSCI, and to allocate in its discretion payments received from Marine Expeditions Inc. as provided in contract with MSCI, without regard to terms upon which those payments made--Both ME, Marine Expeditions Inc. third parties, not privy to contract between plaintiff, MSCI--Contract with MSCI not binding ME--Terms of letter of May 30, 2000 constituting offer for unilateral contract; acceptance of payments acceptance of that offer--Reasonable person observing conduct of parties would conclude plaintiff's conduct amounted to acceptance of terms of payment proposed by Marine Expeditions with respect to debt attributed to defendant ship--Knowing payor's intentions, terms on which payment made, plaintiff ought to have refused funds if not prepared to accept payment on terms proposed--No genuine issue to be resolved at trial--Mere existence of apparent conflict in evidence not precluding summary judgment--Resolution of conflict in evidence not significantly affecting outcome since actions of parties key to resolution of plaintiff's claim, not their understandings of rights each claimed in respect of contract arrangements--Federal Court Rules, 1998, SOR/98-106, r. 213(2).