Pegasus Lines Ltd. S.A. v. Viva America ( The )
T-2158-95 / T-2177-95
Tremblay-Lamer J.
2/2/96
20 pp.
Action for damages for breach of time charter-party by ship Viva America-Application by defendants to have arrest of ship quashed-In another action, plaintiffs seeking Mareva-type interlocutory injunction to prevent debtors' property from leaving jurisdiction of Court-In July 1995, plaintiff Pegasus Lines Ltd. chartering vessel Viva America pursuant to carriage contract between Amican Navigation Inc. and Department of National Defence, in order to rotate military equipment between Canada and Croatia-Vessel was to return to Montréal no later than October 16, 1995- In August 1995, detoured to port of Marseille for repairs- Holds of vessel arrested-Pegasus commencing proceedings to contest arrest-Viva America did not leave Marseille until September 28, 1995, heading for Montréal-En route to Montréal, vessel stopping at St. John's, Newfoundland to have generators repaired-While laid up at St. John's, ship arrested by Pegasus to guarantee payment of claim for losses incurred during delay at Marseille-Federal Court Act, s. 43(2), giving Court jurisdiction in rem in any action relating to ship-Action in rem sustainable only if owner personally liable for amount claimed-To bring action in rem against ship, party must also have right of action in personam against beneficial owner of ship-Admitted defendant Translink France Outremer S.A. registered owner of Viva America since December 24, 1991-Translink concluded management contract with Translink Navigation S.A. under which latter responsible for administration of Viva America-Mandate contract under which Translink France Outremer remained liable for debts incurred by its mandatary, Translink Navigation-Mandators liable for faults of mandataries acting on their behalf-Since Translink France Outremer owner of Viva America and liable as mandator, plaintiffs have right of action in personam against it-No evidence Translink France Outremer and corporations referred to part of single commercial entity for purpose of operating ship Viva America as sole commercial objective-Onus of proof on parties to enable Court to lift corporate veil heavy-No evidence one corporation to large extent controlled actions of other companies-Court refused to lift corporate veil-No evidence to justify conclusion that corporate structure sham or attempt to obscure real identity of company-Registered owner Translink France Outremer remaining beneficial owner-As Translink liable for actions and faults of its mandatary, arrest lawful-Application to quash arrest dismissed-Party seeking Mareva injunction must show strong prima facie case against defendant who owns property to which injunction to apply-No such prima facie case in this case-Application for injunction dismissed-Federal Court Act, R.S.C., 1985, c. F-7, s. 43(2).