Kiku Fisheries Ltd. v. Canadian North Pacific Ocean Corp.
T-1666-97
Hargrave P.
15/9/97
21 pp.
Motion to strike in rem portions of statement of claim, set aside arrest of Limanskiy on grounds no reasonable cause of action or scandalous, frivolous, vexatious or abuse of process-In action Kiku seeking delivery of frozen roe herring or $225,000 in damages-Limanskiy carrying 700 tonnes of frozen Russian roe herring shipped by unpaid vendor, IT & F-Shipment arranged by CNPOC, which contracted with Kiku to provide up to 1,200 tonnes of frozen roe herring-Kiku paying $165,000 (first instalment of purchase price)-Payment purporting to give Kiku interest in roe herring equivalent to payment to CNPOC-Kiku, Yamazaki fish processors-Both paying substantial sums of money to CNPOC, both holding documents called bills of lading, both claiming interest in herring-Marcom, demise charterer, instructing Master to produce two different sets of bills of lading, both showing CNPOC as consignee, but one with Yamazaki as notify addressee and other with Kiku as notify addressee-Master issuing third bill of lading showing Yamazaki as consignee-CNPOC issuing own bill of lading showing Kiku as consignee-Bill of lading signed by Master showing Kiku as addressee cancelled without Kiku's knowledge-Also contract between Kiku and CNPOC purporting to give possessory interest to Kiku-No one advised Kiku of Limanskiy's arrival in Vancouver-When Kiku learned of arrival through own efforts, produced bill of lading to ship, cargo already discharged-Application dismissed-Serious, disputed, uncertain issues of law ought not be determined on summary motion to strike out-Several interesting, infrequently raised points of law herein, and some points of law possibly not yet determined either with certainty or at all-Reference in statement of claim to contracts between Kiku, CNPOC relevant as possible evidence of earmarking or appropriation of herring to Kiku, in proportion to Kiku's payments, resulting in some form of equitable interest-Issue raised as to relationship of plaintiff's claims to Federal Court's statutory jurisdiction-Acts complained of occurring during voyage, after vessel arrived, completed discharge-Kiku alleging negligence in issuing additional bills of lading allowed Kiku to be displaced, and alleged breach of duty of carrier as bailee for reward, both in failing to deliver roe herring to Kiku as holder of original bill of lading and in failing to notify Kiku of arrival of cargo, within Federal Court Act, s. 22(1)-Also referring to Federal Court's jurisdiction over cargo claims (s. 22(2)(e)), claims arising out of carriage of goods (s. 22(2)(i))-Critical points (1) nature of bill of lading; (2) whether binds ship in rem; (3) whether Kiku having interest in cargo; (4) whether duty of care on part of Master or owners to advise Kiku as notify addressee-While nothing indicating bill of lading negotiable, nothing stating nonnegotiable-Plaintiff raising issue, allegedly never settled, of effect of whether delivery of non-negotiable bill of lading transferring any title or possession-In rem portion of statement of claim ought not be struck merely because of some conventional wisdom, possibly faulty, that transfer of non-negotiable bill of lading transferring nothing-Question clearly open to argument, determination-Kiku also referring to proposition endorsement, delivery of bill of lading, even non-negotiable bill of lading, giving equitable right to goods even where bill of lading omitting reference that it is "to order or to assigns"-Issue as to how Kiku obtaining endorsement on bills of lading, whether person endorsing them having authority-Impossible to say on evidence presented whether person endorsing bills of lading held out as appropriate person-Arguable issue whether any equitable interest held by Kiku, as result of delivery of bill of lading might be fleshed out into something more by reason of provisions of two fish processing agreements-Evidence inconclusive as to whether cargo delivered to CNPOC, put into storage by Yamazaki, or whether delivery to Yamazaki-Must be determined at trial-Key issue whether Limanskiy demise chartered by KAO to Marcom-Construction of marine agreement, such as vessel use contract between Marcom and KAO, question of law, to be answered at trial-Finally Marcom seeking to strike plea carrier having obligation to contact notify addressee when cargo arriving-Not forlorn plea-Arguable marine carrier obliged to send notice to persons as directed on carriage document-Marcom not establishing Kiku's claims plainly, obviously, beyond doubt so futile will not succeed-As to deficiencies in affidavit to lead warrant, Federal Court Rules, R. 1003(2) requiring affidavit to set out name, address, occupation of applicant, nature of claim, that claim not satisfied, nature of property to be arrested-Affidavit to lead warrant setting out that plaintiff's claim for nondelivery of cargo of 21,939 boxes of frozen roe herring carried aboard defendant ship Limanskiy-Marcom saying should be mention of negligence, breach of duty as bailee for reward-Description of claim not leaving shipowner in any doubt as to what claim all about particularly in light of what is set out in statement of claim-Inclusion as exhibit of copy of contract not misleading in light of balance of affidavit to lead warrant-In setting out irrelevant payments made for freight, port dues affidavit including too much material-Affidavit to lead warrant not affidavit of documents: to establish affidavit to lead warrant as such would be to defeat whole intent, usefulness of arrest procedure as quick method of securing claims in appropriate instances-Shortcoming of affidavit to lead warrant not fatal, even cumulatively-Warrant not set aside-Federal Court Rules, C.R.C., c. 663, R. 1003(2)-Federal Court Act, R.S.C., c. F-7, s. 22(1).