A-755-80
Lundqvist Rederierna A/B (Appellant)
v.
Great Northern Paper Company and Société pro-
fessionnelle des papiers de presse (Respondents)
Court of Appeal, Thurlow C.J., Pratte J. and
Lalande D.J.—Montreal, June 22, 1982.
Maritime law — Appeal from order of Trial Division refus
ing to set aside service of statement of claim and order giving
leave to serve it ex juris in action in respect of contract of
carriage — Sufficiency of evidence to establish necessary
connection between appellant and ship or contract of carriage
— Respondents relying on contents of affidavit together with
fact that appellant included as party in litigation carried out
in France in respect of claim brought by one of respondents
against master of ship in question and others, to establish
basis for believing appellant was a party bound by contract of
carriage either as owner of ship or otherwise — Appeal
allowed.
COUNSEL:
G. P. Barry for appellant.
L. Fortier for respondents.
SOLICITORS:
McMaster, Meighen, Montreal, for appellant.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for respondents.
The following are the reasons for judgment
delivered orally in English by
THURLOW C.J.: This is an appeal from an order
of the Trial Division, [1981] 2 F.C. 270, which set
aside, on consent, a default judgment and gave
leave to the appellant to defend the respondents'
action but refused to set aside service of the state
ment of claim and the order giving leave to serve it
ex juris.
It is, in my view, apparent that the affidavit on
which leave to serve ex juris was obtained fell
short of disclosing reasons for believing that the
appellant was the owner of the vessel `Fleur" or
was otherwise a party bound by the contract of
carriage. Recognizing the shortcomings of that
affidavit counsel for the respondents sought sup
port for the order in the material put before the
Court by the appellant on the application to set
aside the order and the service made pursuant
thereto. Support was, it was argued, to be found in
the judgments of the Tribunal de commerce de
Rouen and the Cour d'appel de Rouen, both of
which had dismissed proceedings in respect of the
same subject matter brought by one of the
respondents against the Master of the vessel and
others, including the appellant.
In my view, these judgments do not show, nor
does the fact that litigation was brought and car
ried on in France against the appellant in respect
of the claim show that the appellant was in fact a
party bound by the contract of carriage either as
owner or otherwise or that there is sufficient basis
for believing that such is the case to justify an
order requiring the appellant to defend the
respondents' claim in this Court. I reach this con
clusion apart from the evidence that the appellant
was not the owner of the vessel at the material
time, a fact which is at least consistent with the
view I take if indeed it is not also supportive of it.
I would allow the appeal with costs and set aside
the order of January 14, 1980 giving leave to serve
the appellant ex juris and the service made pursu
ant thereto as well as the purported service of the
statement of claim made in Montreal on Decem-
ber 11, 1979, with costs.
PRATTE J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
LALANDE D.J. (dissenting): I think the Motions
Judge' was right in dismissing the application to
set aside service ex juris. I would dismiss the
appeal with costs.
1 [1981] 2 F.C. 270 (T.D.).
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.