Digests

Trawlercat Marine Inc. v. Amity (The)

T-1508-02

2002 FCT 1181, Hargrave P.

13/11/02

15 pp.

Preliminary motion objecting to Court's jurisdiction-- Issues on motion include whether alleged use of copyright yacht designs might sound in rem--Defendant contended no applicable in rem jurisdiction in Court in copyright or otherwise and therefore asked for release of vessel Amity-- For challenge to succeed, want of jurisdiction must be plain and obvious in order to justify striking out proceeding-- Support by affidavit evidence allowed in challenging jurisdiction--Court relied on statement of claim, affidavit evidence to decide jurisdiction question--Plaintiffs argued present dispute ought to sound in rem either by reason of Federal Court Act, s. 22(1) or s. 22(2)(m) or (n)--Plaintiffs submitted jurisdiction under Copyright Act ought to extend to include in remjurisdiction--While Federal Court has jurisdic-tion under Federal Court Act, s. 20 to deal with matters of copyright, that jurisdiction must be founded upon applicable federal law and not on basis of action in tort or contract, incidental to copyright law--In present case, Copyright Act regarded as source of federal law--Court should interpret Act, s. 22(1), broadly--Difficulty in finding jurisdiction within Act, s. 22(1) because copyright claim involved plans supplied for ship neither built nor in existence--Court must be satisfied jurisdictional facts or allegations of such facts supporting attribution of jurisdiction--Regarding argument of s. 22(2)(m) as possible route to attribution of jurisdiction, Court found clear limitations in s. 22(2)(m)--First, goods, materials or services must be for "operation or maintenance" of ship--In present case, plans are for non-existing ship--Second, s. 22(2)(m) referring to operation or maintenance of "ship"-- Drawings supplied for ship existing only as possibility--S. 22(2)(m) not basis for jurisdiction, for not only drawings not needed for operation or maintenance of ship, but also such drawings neither incidental to nor complementary to non-existent ship--Regarding argument of s. 22(2)(n) as possible route to attribution of jurisdiction on ground of claim arising out of contract, plaintiffs established existence of contract to enter into contract--S. 22(2)(n) must clearly relate to construction contract between ship builder, owner--Not case in present instance--Subject-matter of action not coming within Canadian maritime law or within general provision providing jurisdiction under heading of Navigation and Shipping, s. 22(1) of Act, or within included maritime jurisdiction specifically set out in s. 22(2)--In rem claim struck out, release of Amity from arrest ordered--Federal Court Act, R.S.C., 1985 c. F-7, ss. 20 (as am. by S.C. 1990, c. 37, s. 34), 22(1), (2)(m),(n).