Thyssenkrupp Materials Na Inc. v. Stewart Island (Ship), 2005 FC 23

Date: 20050112

Docket: T-15-05

Citation: 2005 FC 23

                                                               ACTION IN REM

                                        AGAINST THE SHIP "STEWART ISLAND"

                                                           AND IN PERSONAM

BETWEEN:

                                          THYSSENKRUPP MATERIALS NA, INC.

                                                                                                                                               Plaintiff

                                                                           and

                                  THE OWNERS AND ALL OTHERS INTERESTED

                                         IN THE SHIP "STEWART ISLAND", AND

                                                 THE SHIP "STEWART ISLAND"

                                                                                                                                         Defendants

                                                        REASONS FOR ORDER

PINARD J.

[1]                This is an appeal by the Plaintiff of a discretionary decision made by Prothonotary Hargrave, on January 7, 2005, denying its request for the examination, pursuant to Rule 238, of the Chief Engineer who was on board the relevant vessel at the time of its engine failure.

[2]                In his decision, the Prothonotary stated:

Examination of the Chief Engineer, pursuant to Rule 238, is denied. While the Chief Engineer, in all likelihood, has relevant information and while his examination would be unlikely to cause undue delay, inconvenience or expense, I am not convinced either that the information, which the Chief Engineer could provide, cannot be obtained from another source, such as production of documents or timely examination for discovery, or that there is inherent or actual unfairness in denying examination of the Chief Engineer at this point.

[3]                Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the Prothonotary's decision and to consider exercising my own discretion differently because the Plaintiff has failed to demonstrate that the impugned decision is "clearly wrong", in that it was made upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.)).    I am rather satisfied that the Prothonotary applied Rule 238 correctly, exercised his discretion in a rightful manner and based his decision on the evidence before him.

[4]                Consequently, the appeal is dismissed, with costs against the Plaintiff payable forthwith, upon taxation, in any event of the cause.

(Sgd.) "Yvon Pinard"

        Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-15-05

STYLE OF CAUSE: Thyssenkrupp Materials NA, Inc. v

The Owners and all others interested in the Ship "Stewart Island", the Ship "Stewart Island"

PLACE OF HEARING:                                 Vancouver BC

DATE OF HEARING:                                   January 11^th, 2005

REASONS FOR ORDER:                           Pinard J.

DATED:                     January 12, 2005

APPEARANCES:

Shelley Chapelski                                              FOR PLAINTIFF

Michael Bird                                                      FOR DEFENDANT

Peter Bernard                                                    FOR SK SHIPPING CO. LTD.

SOLICITORS OF RECORD:

Bromley Chapelski                                            FOR PLAINTIFF

Vancouver BC

Bull, Housser & Tupper                                                 FOR DEFENDANTS

Vancouver BC

Bernard & Partners                                           FOR SK SHIPPING CO. LTD.

Vancouver BC