MARITIME LAW |
Practice |
Adecon Ship Management Inc. v. Calix (The)
T-267-00
Giles A.S.P.
15/5/00
8 pp.
Motions to strike, on basis of lack of jurisdiction, parts of statement of claim related to action in rem in connection with which Cuban ship arrested and other action in rem in which caveat release filed--Action arising from alleged breach of contract of sale of Calix to plaintiff--Allegation ship supposed to be free and clear of all liens--After sale, plaintiff had to pay off liens to get title and then got allegedly clouded title--Calix arrested in Cuba--Plaintiff alleging both vendor and arresting company agents of Cuban government--Statement of claim in rem name number of Cuban ships alleged by plaintiff to be sister ships--One of alleged sister ships arrested--That arrest giving rise to present motions--Defendants arguing arrested ship not sister ship--Motions allowed--Matter to be decided according to Canadian, not Cuban, law--Plaintiff argued because good title had not been made by vendor, vendor had not fully interest in Calix; Calix and arrested ship thus both being "owned" by Cuban government, ships sister ships--However, ownership of part interest in two ships not by itself sufficient to constitute ships sister ships; total interest must be same: Ssangyong Australia Pty. Ltd. v. Looiersgracht (The) (1994), 85 F.T.R. 265 (F.C.T.D.)--Plaintiff owner of Calix at time action brought, as well as at time cause of action arose--Time constraints in Federal Court Act, s. 43(8) logically attach only those interests of defendant which he had at time action commenced--To be sister ship, arrested ship must be beneficially owned by owner of Calix--Not case herein--Therefore, no jurisdiction in rem and in rem claims should be struck out--Nothing to support arrest and ship should be released--Caveat release filed against arrested ship set aside and discharged--Federal Court Act, R.S.C., 1985, c. F-7, s. 43(8) (as am. by S.C. 1990, c. 8, s. 12).