A-234-77
Bright Star Steamship Co. (Plaintiff) (Appellant)
v.
The Vessel Lorna P (formerly named Cacouna)
and Coastal Shipping Limited—Messagerie
Côtière (Defendants & Counter- claimants)
(Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 17, 1979.
Maritime law — Practice — In action resulting from mari
time collision, appellant (plaintiff), under threat of arresting
defendant ship, obtained bail from respondents (defendants) as
security for its claim — Respondents, on filing counter-claim,
sought security, but appellant's ship out of Canadian waters
— Trial Division granted respondents' application for order
requiring plaintiff to file bail as security for defendants'
counter-claim and for order staying plaintiff's action until bail
filed — Whether or not Trial Division has power to force a
plaintiff in an action for damages resulting from a collision
between two ships, to file security for counter-claim of
defendant.
APPEAL.
COUNSEL:
Gerald P. Barry for plaintiff (appellant).
Trevor H. Bishop for defendants & Counter-
claimants.
SOLICITORS:
McMaster, Meighen, Montreal, for plaintiff
(appellant).
Brisset, Bishop, Davidson & Davis, Montreal,
for defendants & Counter-claimants.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: The appellant is the plaintiff in an
action instituted against the respondents following
a collision between two ships.
The appellant commenced its action on May 28,
1973, and, under threat of arresting the defendant
ship, obtained from the respondents bail in the
amount of $115,000 as security for its claim.
At the same time as the respondents filed a
statement of defence, on June 14, 1973, they filed
a counter-claim for the amount of the damages
suffered by their vessel. At that time, however, the
appellant's vessel had left Canadian waters and
could not be arrested by the respondents for the
purpose of obtaining security for their counter
claim.
On March 21, 1977, the respondents applied to
the Trial Division for an order "enjoining the
plaintiff to file bail in the amount of $115,000 as
security for the counter-claim of the defendants
and for an order staying the plaintiff's action in
this case until such bail has been filed." The Trial
Division granted that application and it is against
that decision that this appeal is directed.
We are all of the view that the appeal must
succeed. In our opinion, the Trial Division no
longer has the power that it possessed under sec
tion 22 of the former Admiralty Act, R.S.C. 1970,
c. A-1, to force a plaintiff, in an action for dam
ages resulting from a collision between ships, to
file security for the counter-claim of the defend
ant.
The appeal will therefore be allowed with costs,
the decision of the Trial Division will be set aside
and the respondents' application to the Trial Divi
sion will be dismissed with costs.
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.