Marianne McQuarrie, for herself and as the
widow of John Glover McQuarrie, deceased
(Plaintiff)
v.
The ships U.S.S. American Ranger, Calm Sea,
United States Lines Inc., Deep Cove Fishing Co.
Ltd., Eugene J. O'Donell, Donald Carl Doving,
James Kaj Byberg, Roderick Wilson, and Samuel
Don Dumaresq (Defendants)
Trial Division (T-271-74), Collier J.—Vancou-
ver, January 28; February 8, 1974.
Maritime law—Jurisdiction—Ex parte motion for leave to
serve notice of statement of claim on non-resident defend-
ants—Proceedings allowed without prejudicing rights of for
eign defendants to challenge order.
The Ferncliff [1972] F.C. 1337; The Martha Russ
[1973] F.C. 394; The Ikaros [1973] F.C. 483; The
Robert Simpson Montreal Ltd. v. Hamburg-Amerika
Linie Norddeutscher [1973] F.C. 1356 discussed.
APPLICATION.
COUNSEL:
J. Adelaar, for plaintiff.
No one for defendants.
SOLICITORS:
Braidwood, Nuttall, Mackenzie, Brewer,
Greyell & Company, Vancouver, for plaintiff.
COLLIER J.—The plaintiff applies ex parte for
leave to serve notice of the statement of claim
on the defendant United States Lines Inc. and
Eugene J. O'Donell, ex juris in the State of New
York. The corporate defendant referred to was,
at material times, the owner of the vessel U.S.S.
American Ranger and the defendant O'Donell
was her master. According to the statement of
claim the other defendants reside or carry on
business in British Columbia.
The action is for damages for the death of one
John McQuarrie which occurred while attempts
were being made to transfer him, at sea, from
another vessel to the U.S.S. American Ranger.
As I understand it, the mishap occurred in non-
Canadian waters. The action against all defend
ants is framed in negligence.
At the hearing, I indicated I had serious
doubts as to the jurisdiction of this Court to
entertain the claim against the U.S.S. American
Ranger and O'Donell, and I referred counsel to
views I have expressed as to the so-called
Admiralty jurisdiction of this Court in three
decisions: The Ferncliff [1972] F.C. 1337; The
Martha Russ [1973] F.C. 394; The Ikaros
[1973] F.C. 483.
The first two decisions are more directly in
point. Appeals have been launched in the latter
two and are to be heard this month. I am told
the correctness of the Ferncliff decision will be
challenged in the two appeals. There is, in addi
tion, a recent decision of the Appeal Division of
this Court: The Robert Simpson Montreal Lim
ited v. Hamburg-Amerika Linie Norddeutscher
[1973] F.C. 1356. I think it fair to say it can be
contended that some, at least, of the reasoning
in that decision overrides the views I, have
expressed in the cases cited above.
In all these circumstances, I have decided to
exercise the Court's discretion in favour of
allowing, now, service ex juris of notice of the
statement of claim, rather than dismissing the
application or adjourning it pending the out
come of the appeals earlier referred to. Without
going into detail, I think the course I have
indicated may ultimately result in some saving
of time, possible appeals, appearances, and
costs.
I make it clear, however, that in exercising
my discretion in favour of the plaintiff on this
application, I must not be taken as agreeing that
this Court has jurisdiction in the circumstances.
The order therefore goes, at the plaintiff's risk.
It is, of course, without prejudice to the rights
of these foreign defendants to take whatever
proper steps they may feel advisable to set aside
this order or service of the process. In view of
the somewhat unusual circumstances here, I
should also state that this order is made by me
without in any way attempting to restrict, cir
cumscribe or affect the decision or opinion of
any other Judge of this Court who may hear a
motion to set aside this order.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.