Paramount Enterprises International, Inc. v. An Xin Jiang ( The )
T-956-97
Morneau P.
30/9/97
9 pp.
Motion by defendants China Ocean Shipping (Group) Co. and Guangzhou Ocean Shipping Company (Cosco) to strike out in rem portion of action of plaintiff Paramount under R. 419(1)(a) on ground discloses no reasonable cause of action-Under Conlinebooking charter party entered into on March 10, 1997, plaintiff undertaking to carry, and defendants to ship, cargo of 1000 metric tons of explosives on ship Len Speer-According to paragraphs 4, 5, 6 and 7 of statement of claim, defendants breaching obligations under charter party by causing cargo of dynamite to be carried to Grande Anse, Quebec, on ship, An Xin Jiang, belonging to Cosco, thereby causing losses to Paramount assessed at $175,000-Paragraph 11 of statement of claim indicating Paramount considering itself entitled to exercise rights in rem against An Xin Jiang-Similarly, paragraphs 9 and 10 seeking exercise in rem, against cargo, of Paramount's rights resulting from breach of Conlinebooking charter party by contractual defendants-Federal Court Act, s. 22 confers basic jurisdiction over admiralty matters on Court, and s. 43(2) concerns exercise in rem of said jurisdiction-For purposes of s. 43(2), action in rem cannot be brought against just any of defendant's ships or cargoes but must, according to s. 22(2)(i), be limited to ship or cargo covered by agreement on which plaintiff's action based-An Xin Jiang not part, not even on paper, of equation between agreement on which action based and ship to which agreement applies-Cannot therefore be subject of action-Party to agreement for carriage by sea can bring action against ship and ship's owners even if not direct parties to agreement-Such action of course one in delict-Now settled Act, s. 22(2)(i) permits this result-Paramount, unlike owners of ship, not party to agreement between three contractual defendants and Cosco-Plain and obvious Paramount's action in rem, in so far as relates to An Xin Jiang, discloses no reasonable cause of action within meaning of R. 419(1)(a)-In context of agreement, facts as presented not disclosing sufficient connection between Paramount and cargo to permit Paramount to exercise right to follow in respect thereof-Can be seen from statement of claim Paramount never had possession of cargo-Thus, never carried cargo, and even less so on board Len Speer-Plain and obvious Paramount's action in rem, in so far as relates to cargo, discloses no reasonable cause of action within meaning of R. 419(1)(a)-Motion allowed-Federal Court Rules, C.R.C., c. 663, R. 419(1)(a)-Federal Court Act, R.S.C., 1985, c. F-7, ss. 22(2)(i), 43(2).