Ford Aquitaine Industries SAS v. Canmar Pride (Ship), 2004 FC 1437

                                                                                                                                  Date: 20041018

                                                                                                                             Docket: T-1291-03

Citation: 2004 FC 1437

ADMIRALTY ACTION IN REM AGAINST THE VESSEL "CANMAR PRIDE" AND IN PERSONAM AGAINST CPS NO. 5 LIMITED, CPS NO. 3 LIMITED, CANMAR PRIDE LTD., CP SHIPS (UK) LTD. and ORIENT OVERSEAS CONTAINER LINE LTD.

BETWEEN:

FORD AQUITAINE INDUSTRIES SAS

and

FORD MOTOR COMPANY

and

FORD ST. LOUIS ASSEMBLY DIVISION

and

FORD LOUISVILLE ASSEMBLY DIVISION

and

HOWARD TERNES PACKAGING INC.

                                                                                                                                             Plaintiffs

                                                                           and

                                                THE VESSEL "CANMAR PRIDE"

and

CPS NO. 5 LIMITED

and

CPS NO. 3 LIMITED

and

CANMAR PRIDE LTD.

and

CP SHIPS (UK) LTD.

and

ORIENT OVERSEAS CONTAINER LINE LTD.

                                                                                                                                         Defendants

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]                This is a motion by both the marine carrier (OOCL) and the other defendants, hereinafter referred to generally and collectively as the owners of the vessel, to strike out or stay the action brought by the plaintiffs, hereinafter referred to collectively as Ford, for losses suffered on or about March 9, 2003, during the sea carriage of automatic transmissions.

[2]                In the Court's opinion, it is primarily and essentially the staying of Ford's action in this Court under section 50 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, that interests OOCL and the owners of the vessel, and the Court will limit its analysis to this particular aspect.

The facts

[3]                On February 7, 2003, OOCL and Ford signed a services agreement entitled Transportation Services Main Agreement (the TSM agreement). This agreement includes as Exhibit 1 the Ford Supplemental Ocean Transportation Terms (the Ford supplemental terms) and, as Exhibit 2, the Ford Global Terms and Conditions (the Ford global terms). The TSM agreement also includes an OOCL standard bill of lading.

[4]                It seems that the TSM agreement was intended to be a framework agreement between Ford and OOCL for the carriage of thousands of containers per year from the Ford overseas infrastructures to the Ford installations in the United States. For each shipment, the selected shipping route was determined by OOCL's operational decisions.

[5]                In the case that concerns us, it was decided that the containers in which the Ford transmissions were inserted would be shipped from the French port of Le Havre for unloading at the Port of Montréal. From there the containers were to be taken by rail or highway to various destinations in the United States.

[6]                The marine carriage was undertaken on March 3, 2003, via the services of the owners of the ship that was retained, the "Canmar Pride", since at the time there was an agreement between OOCL and the owners of the vessel allowing either one to use spaces available on the other's vessels to carry cargo. This agreement is designated the St. Lawrence Coordinated Service Slot Charter Agreement (the SLCS agreement). Unfortunately, on or about March 9, 2003, a number of these containers were damaged or lost at sea as a result of difficult weather conditions.

[7]                The vessel found refuge at the Port of Halifax, and arrived at Montréal around March 15, 2003.

[8]                It should be noted that various other cargos were also damaged during this voyage and consequently other litigation by different plaintiffs has been undertaken in this Court against the owners of the vessel.

[9]                The TSM agreement contains in its Exhibit 2, the Ford global terms, a clause 26 which provides that the forum or jurisdiction for legal proceedings is the Court in Michigan designated therein, and the applicable law is the law of that state. Clause 26 reads, in its relevant part, as follows:

26.            APPLICABLE LAW AND ARBITRATION

(a)            A Purchase Order shall be governed by the law of Buyer's principal place of business without regard to conflict of laws provisions thereof, and litigation on contractual causes arising from a Purchase Order shall be brought only in that jurisdiction. For Ford Motor Company, a Delaware corporation and any U.S. subsidiary, joint venture or other operation located in the U.S., the principal place of business will be deemed to be Michigan. The UN Convention for the International Sale of Goods is expressly excluded.

[10]            The evidence indicates that Ford has its principal place of business in Michigan and that clause 26 was included in the TSM agreement at Ford's request.

[11]            As a result of the damages suffered at sea, Ford and its insurers commenced, on July 2, 2003, an action against OOCL in the United States District Court for the Eastern District of Michigan, Southern Division (the Michigan action). In this Michigan action, Ford did not include the owners of the vessel as defendants. According to counsel for the vessel owners and OOCL, the fact that Ford brought its action in Michigan and that Ford did not join the vessel's owners as defendants in this Michigan action indicates that Ford complied with both clause 26 of the Ford global terms and clause 25 of the OOCL standard bill of lading (which is part of the TSM agreement). This clause essentially stipulates that the "Merchant", Ford in this case, may not take any legal proceedings against any subcontractor with which OOCL might wish to do business, which in this case covers any bar to litigation against the owners of the vessel relied on by OOCL under the SLCS agreement. Clause 25 reads as follows:

25)            SUB-CONTRACTING AND INDEMNITY

(a)            The Carrier shall be entitled to sub-contract the whole or any part of the duties undertaken by the Carrier in this Bill of Lading in relation to the Goods on any terms whatsoever consistent with any applicable law.

Merchant undertakes that no claim or allegation shall be made against any person performing or undertaking such duties (including all servants, agents and sub-contractors of the Carrier) other than the Carrier, which imposes or attempts to impose upon any such person, or any vessel owned by any such person, any liability whatsoever in connection with the Goods or the carriage of the Goods from port of loading to port of discharge whether or not arising out of negligence on the part of such person and, if any such claim or allegation should nevertheless be made, the Merchant will indemnify the Carrier against all consequences thereof.

(c)            Without prejudice to the Merchant's indemnity obligations herein, the Vessel and every subcontractor of the Carrier of any nature whatsoever (including but not limited to the Participating Carrier, the Vessel, the owner, charterer, operator, Master, officer and crew of the Vessel, and employees, agents, representatives, and all stevedores, terminal operators, watchmen, carpenters, lasher, ship cleaners, surveyors and other independent contractors) shall have the benefit of every right, defence, limitation and liberty of whatsoever nature herein contained or otherwise available to the Carrier as if such provisions were expressly for its benefit, and in entering into this contract, the Carrier, does so not only on its own behalf but also as agent and trustee for such persons or Vessel. The term "subcontractor" as used herein shall include both direct and indirect subcontractors hired by the Carrier to perform the Carrier's own obligations under the Bill of Lading, or the obligations of any person for whom the Carrier acts as agent. An indirect subcontractor is a person with whom the Carrier is not in contractual privity. For the purpose of this Clause 25, the Vessel and all subcontractors shall be deemed to be parties to the contract evidenced by this Bill of Lading.

(d)    The provisions of Clause 25(b) shall extend to claims or allegations of whatsoever nature against other persons chartering space on the carrying Vessel.

(e)    The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any person other than in accordance with the terms and conditions of this Bill of Lading which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods whether or not arising out of negligence on the part of the Carrier and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof.

[12]            The Michigan action was therefore commenced on July 2, 2003.

[13]            However, three weeks later, on July 22, 2003, Ford commenced in Canada, in the present case T-1291-03, an action against OOCL and the owners of the vessel, an action that has the same purpose and causes as those in the Michigan action.

[14]            On August 28, 2003, OOCL filed in the Michigan action its reply to this action brought by Ford.

[15]            Furthermore, in the Michigan action OOCL counterclaimed against the owners of the vessel who in turn brought a counterclaim against OOCL.

[16]            Also on August 28, 2003, Ford sought to abandon its action in Michigan. However, on June 21, 2004, Judge Hood of the Court in the Michigan action decided in an initial decision that Ford's abandonment had been filed on August 28, 2003, after OOCL had filed its reply. Accordingly, she ruled that Ford could not abandon its action in Michigan.

[17]            Also on June 21, 2004, Judge Hood issued a second decision, one that is of greater interest since Judge Hood had to rule on a motion by Ford that basically sought to have the Michigan action dismissed since, as Ford argued (page 2 of that decision):

Plaintiffs [Ford] have filed an identical cause of action in Canada and assert that the Canadian forum is the proper jurisdiction in which this matter should be litigated.

[18]            Judge Hood begins her analysis of this allegation by a review of the facts that were put before her. She states:

II. Statement of Facts

A. Substantive Claim

OOCL [Defendant] is a member of an alliance of ocean carriers which "slot-charter" space on one another's vessels thereby allowing OOCL to have a certain number of containers loaded aboard the vessel of another carrier for carriage between, among other places, LeHavre, France and Montreal. In that event, OOCL issues its form bill of lading for the containers being carried identifying the other's vessel as the carrying vessel.

(Defendant's Response to Plaintiffs' Cross Motion to Dismiss, pg. 3)

Plaintiffs entered into a written contract entitled "Transportation Services Main Agreement" (TSM), wherein it was agreed that Plaintiff Ford would deliver to Defendant "numerous ocean containers said to contain [6000 units of] automatic transmissions in racks ("Ford containers") for transportation from Blanquefort, France to LeHavre, France and thereafter to Montreal for ultimate delivery to, among other places, Louisville, Kentucky and Hazelwood, Missouri. (Defendant's Response to Plaintiffs' Cross Motion to Dismiss, pp. 2-3 & Exhibit A of Defendant's Response to Plaintiffs' Cross Motion to Dismiss, (Plaintiffs' Complaint), ¶ 13 & Exhibit F)). It is alleged that prior to the cargo reaching its destination, "numerous Ford containers were lost overboard and/or damaged during heavy weather." (Defendant's Response to Plaintiffs' Cross Motion to Dismiss, pg. 3 & Exhibit A of Defendant's Response to Plaintiffs' Cross Motion to Dismiss (Plaintiffs' Complaint), ¶ 18). Plaintiffs assert that this loss in tantamount to a monetary loss of six million ($6,000,000.00) dollars. Plaintiffs are seeking monetary compensation for the loss and/or damage to the Cargo.

Plaintiffs filed the cause of action before this Court on July 2, 2003. Plaintiffs have also filed a claim against all of the Defendants and Third-Party Defendants in this case in the Federal Court of Canada. (Exhibit E of Defendant's Response to Plaintiffs' Cross Motion to Dismiss). Plaintiffs argue as follows:

Following this maritime casualty, and in accordance with usual and customary maritime practice, plaintiffs sought and obtained a P & I Club Letter of Undertaking from the mutual insurer of the vessel, its owners, managers, bareboat operators, etc. [Exhibit A of Plaintiff's Response to Motion to Reinstate]. This Letter of Undertaking now stands as security and guarantees the payment of any judgment recovered by plaintiffs in respect of this loss. However, and since the M.V CANMAR PRIDE [Third Party-Defendant] calls (as it did on this voyage) at no North American port other than Montreal, the P & I Club explicitly conditioned the security as being contingent upon proceedings being brought in the Federal Court of Canada in Montreal. Accordingly, the plaintiffs duly filed an action before the Federal Court of Canadian Montreal, naming OOCL, the vessel, its owners, bareboat charterers, managers and operators (hereinafter "the vessel defendants"). Thus, the security obtained by plaintiffs is only good for the Canadian action.

(Plaintiff's Response to Motion to Reinstate, pp. 1-2). Accordingly, Plaintiffs claim that they have no security in the case presently before the Court, and the action in Canada is more "plenary and complete" since it "involves all of the jointly and severally liable defendants, together with the vessel and the attendant maritime security in the form of the P & I Club Letter of Undertaking." (Plaintiff's Response to Motion to Reinstate, pg. 2). As a result, Plaintiffs request that this Court defer jurisdiction to the Canadian Federal Court, and dismiss this matter pursuant to Fed. R. Civ. P. 41(a)(2), as it would promote judicial economy to do so.

Defendant's response to this argument is that, according to the TSM Agreement, the parties are contractually bound to litigate this matter in a state or federal court where Michigan law governs. (Exhibit F, Clause 26, of Defendant's Response to Plaintiffs' Cross Motion to Dismiss). The clause is entitled "Applicable Law & Arbitration;" and it states as follows:

A Purchase Order shall be governed by the law of Buyer's principal place of business without regard to conflict of laws provisions thereof, and litigation on contractual causes arising from a Purchase Order shall be brought only in that jurisdiction. For Ford Motor Company, a Delaware Corporation, and any U.S. subsidiary, joint venture or other operation located in the U.S., the principal place of business will be deemed to be Michigan.

Defendant embellishes upon this argument further by alleging that Plaintiff Ford "insisted on the Michigan law and jurisdiction provisions of the TSM Agreement" and, as a result, "Ford and OOCL [] agreed in the TSM Agreement that any action by Ford and Royal would be brought in the courts of Michigan and Michigan law would apply." (Defendant OOCL's Memorandum of Law in Opposition to Plaintiffs' Cross-Motion to Dismiss, pg. 13); See also Third-Party Defendants' Brief in Opposition to Plaintiff's Cross Motion to Dismiss Pursuant to FRCP 41 (a)(2), pg. 17). Some additional facts that have not been disputed by the Plaintiffs are as follows: (1) the claim before this Court was filed first on July 2, 2003. The Canadian action was filed on July 22, 2003; (2) no jurisdictional challenges have been raised by Plaintiffs regarding this matter being litigated in this Court; (3) the Defendant, nor the Third-Party Defendants have raised any jurisdictional defenses in this matter; (4)" [n]one of the defendants in the Canadian action have responded to the Plaintiffs' Complaint there [nor otherwise appeared in the Canadian cause of action] as of the date this Motion was filed;" (5) [t]he vessel in rem and her Owners (the parties to the Canada security) have offered to substitute the Canada security with identical security which will be enforceable in Michigan with a Michigan jurisdiction clause if the court maintains the action here. (Tisdale Supp. Aff. ¶ 10; Tisdale Ex. N);" and (6) "[t]he Canadian court has issued an Order maintaining the status quo until a Case Management Conference is held;

[and OOCL plans to file a Motion to Stay Proceedings] while the Michigan action [is] litigated to conclusion. According to Canadian counsel, OOCL has an excellent chance of success on this motion. (Colford Aff. ¶ 10);" (Defendant OOCL's Memorandum of Law in Opposition to Plaintiffs' Cross-Motion to Dismiss, pg. 13-15; See also Third-Party Defendants' Brief in Opposition to Plaintiff's Cross Motion to Dismiss Pursuant to FRCP 41(a)(2), pg. 17) (See n. 3)).

Defendant describes Plaintiffs' attempt to dismiss the action before this Court and their encouragement of the Canadian claim to move forward as forum shopping. Defendant maintains that there is a monetary liability limit that would be adhered to in this Court ($210,000.00 or $500.00 per lost/damaged package). In Canada, Plaintiffs would have the opportunity to collect a significantly greater recovery if they were to prevail in this case ($4,500,000.00). Therefore, Defendant contends that this is the basis and motive for Plaintiffs' "race to the courthouse" to dismiss this matter so that the clause of action in Canada can be litigated in that jurisdiction.

[19]            In her analysis, Judge Hood approaches the situation in the following way:

IV. Applicable Law & Analysis

A.       Canadian Action v. The Instant Case

After reviewing the pleadings relative to this issue, the Court finds that Plaintiffs' argument is that the Canadian action is more "plenary" and "complete" because the same parties in the claim before this Court are included in the Canadian Statement of Claim; Plaintiffs have security in the Canadian claim; and Defendant would not be legally prejudiced if this matter were dismissed. Defendant and the Third-Party Defendant cite several practical and legally sufficient reasons, enumerated above, and to why this matter should proceed in this Court. The Court finds Defendant's and the Third-Party Defendants' argument persuasive. No party other than Plaintiffs had made an appearance on the Canadian action as of the filing of this Motion, and, as stated above, the Canadian claim is presently not progressing and will not proceed until Defendant is afforded the opportunity to file and have heard its Motion fo Stay Proceedings pending the resolution of the matter before this Court.

Besides arguing that the "first to file" and the "plenary and complete" positions set forth above, Plaintiff has failed to articulate to this Court's satisfaction the other factors set forth in Intercontinental which would support the Canadian court being the proper jurisdiction in which to litigate this matter.

V. Conclusion

For the reasons set forth above, the Court finds that Plaintiff's Cross Motion to Dismiss should be DENIED; and this Court will continue to exercise its jurisdiction over this case.

Analysis

[20]            Subsection 50(1) of the Federal Courts Act, supra, sets out the discretionary power of the Court to stay proceedings in a case:

[21]            It seems to me, from the outset, that our attention should be focussed on paragraph 50(1)(a), since it is apparent that Ford's action in this case has been before another court since July 2, 2003, through the action in Michigan.

[22]            Since there is no appeal from the decisions of Judge Hood of June 21, 2004, the Michigan action, the purpose and cause of which are similar to those in the present action, will certainly go ahead.

[23]            The parties, and more specifically the owners of the vessel, are defendants in Canada in this case. And while not directly or initially sued by Ford in the Michigan action, the owners of the vessel are nevertheless required as it were to defend in Michigan against the Ford action as if Ford had sued them directly, as it did in Canada. At paragraph 9 of his affidavit dated March 25, 2004, James F. Sweeney, Ford's counsel in the Michigan action, makes this allegation in effect:

9.    In the American action, OOCL freely invoked Rule 14(c) and impleaded the vessel, the shipowner and the CP interests as third party defendants, thereby alleging their direct liability to the plaintiffs. (See Third-Party Complaint of OOCL, attached hereto as Exhibit B). These third-party defendants were then required to plead to the Plaintiffs' Complaint (Tisdale Affid. ¶ 22) and their status (as no conferred by OOCL) was just as though plaintiffs had sued them from the outset. (...)

[24]            In Canadian Conflict of Laws, 5^th ed. (Butterworths), Jean-Gabriel Castel states at pages 13-24 the appropriate approach for determining whether a stay of proceedings is appropriate in the presence of parallel actions:

In two recent decisions of the British Columbia Court of Appeal, one dealing with a parallel proceeding in Ontario and the other with a parallel proceeding in Kansas: 472900 B.C. Ltd. v. Thrifty Canada, (1998), 168 D.L.R. (4th) 602 (B.C.C.A.), and Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 173 D.L.R. (4th) 498 (B.C.C.A.), leave to appeal to S.C.C. granted, the other court was first seized and the British Columbia courts agreed that the other court was not an inappropriate forum. In both cases the British Columbia courts granted stays, tailoring the test for forum non conveniens to take account of the special considerations that apply in situations of parallel proceedings. The Court in Thrifty developed the following test that was endorsed by the court in Westec:

(1)      Are there parallel proceedings underway in another jurisdiction?

(2)      If so, is the other jurisdiction an appropriate forum for the resolution of the dispute?

(3)      Assuming there are parallel proceedings in another appropriate forum, has the plaintiff established objectively by cogent evidence that there is some personal or juridical advantage that would be available to him only in the British Columbia action that is of such importance that it would cause injustice to him to deprive him of it?

An appeal to the Supreme Court of Canada in Westec was dismissed without reasons after an adjournment prompted by the revelation that the issue might be moot in view of the fact that the Kansas court had granted summary judgment in the parallel proceedings.

[25]            It is my opinion in this case that the action in Michigan fulfills the first two criteria in Westec, that is, that the Michigan action constitutes a parallel action in an appropriate forum.

[26]            As to the third criterion, I do not think that Ford, from the evidence it has submitted in opposition to the motions at bar, that is, the affidavits of Mr. Sweeney dated March 25 and June 9, 2004, has established the proof sought by virtue of the third criterion in the Westec decision.

[27]            Ford's major point in this regard is that the Court in the Michigan action will lean toward the American legislation, the Carriage of Goods by Sea Act, 46 USC c. 1300 et seq. (COGSA), which establishes some liability limits for OOCL that are lower than if the action were to proceed in this Court, in which case the Court would be more inclined to apply the Hague Rules as amended by the Visby Rules (the Hague-Visby Rules).

[28]            It is worth recalling here what Judge Hood relates on this point at pages 5 and 6 of her second decision of June 21, 2004:

Defendant describes Plaintiffs' attempt to dismiss the action before this Court and their encouragement of the Canadian claim to move forward as forum shopping. Defendant maintains that there is a monetary liability limit that would be adhered to in this Court ($210,000.00 or $500.00 per lost/damaged package). In Canada, Plaintiffs would have the opportunity to collect a significantly greater recovery if they were to prevail in this case ($4,500,000.00). Therefore, Defendant contends that this is the basis and motive for Plaintiffs' "race to the courthouse" to dismiss this matter so that the cause of action in Canada can be litigated in that jurisdiction.

[29]            Before our Court, the parties on both sides filed affidavits by their U.S. counsel in which they fiercely dispute which rules, the COGSA or the Hague-Visby Rules, should govern the determination of liability, if found, in the defendants. This is a very complex question that will probably be argued in the Michigan action as it would also be in this Court if the present action were not to be stayed.

[30]            It can therefore be concluded, however, that this debate means that for the purposes of the third criterion in the Westec test, Ford has not established objectively by cogent evidence that it would enjoy in Canada some juridical advantage that it could not have in the action in Michigan.

[31]            Moreover, is the possibility of intervening in this case under paragraph 50(1)(a) of the Federal Courts Act ruled out under section 46 of the Maritime Liability Act, S.C. 2001, c. 6? I do not think so.

[32]            Section 46 reads:

[33]            It is clearly undeniable that Montréal, the port of discharge under the contract and in fact, is in Canada. However, in Z.I. Pompey Industrie v. ECU - Line N.V. [2003] 1 S.C.R. 450, the Supreme Court, at page 472, limited the impact of section 46 on the Court's discretion under section 50 of the Federal Courts Act to the presence of a forum selection clause. The Court stated:

[34]            I do not think section 46 of the Maritime Liability Act interferes with the application of paragraph 50(1)(a) of the Federal Courts Act, supra, either when assessing the presence of a parallel action or, under paragraph 50(1)(b) of that Act, when the issue is whether in the interest of justice an action in this Court should be stayed for a reason other than the presence of a forum or jurisdiction selection clause.

[35]            I think this is the sense in which my colleague Prothonotary Milczynski clearly directed herself when she states at paragraph 14 of her decision in Magic Sportswear Corp. et al. v. OT Africa Line et al., 2003 F.C. 1513 (upheld by O'Keefe J. on appeal, August 23, 2004: 2004 FC 1165; appealed to the Federal Court of Appeal on September 2, 2004, docket A-444-04):

Section 46 of the Marine Liability Act clearly removes the determining or binding effect of a forum selection clause in a bill of lading or contract of carriage of goods by sea. I do not , however, read the obiter comments of either the Supreme Court or the Federal Court of Appeal to mean, as the Plaintiffs suggest, that on other grounds this Court could not order a stay of proceedings in the appropriate circumstances if it was in the interest of justice so to do. To conclude otherwise and adopt the Plaintiffs arguments, would mean that in cases where any provision of section 46 of the Marine Liability Act has been satisfied, the Court could never order a stay of proceedings. The result would be, as a consequence, that the Court would lose its ability to control the proceedings before it.

[36]            There is cause, therefore, for this Court, under paragraph 50(1)(a) of the Federal Courts Act, to stay the Ford action in this case in regard to both OOCL and the owners of the vessel on the ground that this action by Ford is being proceeded with in another court.

[37]            As to the presence of the owners of the vessel, I think as well that both OOCL and the vessel owners themselves are justified in seeking a stay of the Ford action against the vessel owners under paragraph 50(1)(b) of the Federal Courts Act since, as mentioned previously, Ford, in the TSM agreement - and more specifically in clause 25 of the OOCL standard bill of lading, a clause reproduced in para. [11], supra - undertook not to make any claim or allegation against any subcontractor with which OOCL might wish to do business, which in this case covers any bar to litigation against the vessel owners that was in fact relied on by OOCL under the SLCS agreement (Nippon Yusen Kaisha v. International Import and Export Co. Ltd. "The Elbe Maru", [1978] 1 Lloyd's Rep. 206, page 210; B.H.P. v. Hapag-Lloyd Aktiengesellschaft, [1980] 2 N.S.W.L.R. 572; The Nedlloyd Columbo, [1995] 2 HKC 655 (Hong Kong Court of Appeal)).

[38]            Ford vigorously objects to the possible use against it of clause 25 in the context of this action, since in the Michigan action OOCL itself sued the owners of the vessel and they, in return, have not objected to this lawsuit against them by OOCL.

[39]            However, it should be noted that the purpose of this clause 25 is to prevent suits by Ford and it is not addressed to the possibility of a suit by OOCL against the owners of the vessel.

[40]            Over and above clause 25, which favours a stay of Ford's action against the vessel owners, in the interests of justice, it is arguably in the interests of justice as well that Ford's action against the said owners be stayed in order to prevent Ford's suit being argued in both Canada and Michigan, resulting in circular actions.

[41]            For all of these reasons, it is necessary to allow the motions by OOCL and the vessel owners to stay the action by Ford pursuant to section 50 of the Federal Courts Act, supra, with costs to both OOCL and the owners of the vessel.

[42]            An order shall issue accordingly.

"Richard Morneau"

Prothonotary

Certified true translation

Jacques Deschênes, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            T-1291-03

STYLE:                                               

ADMIRALTY ACTION IN REM AGAINST THE VESSEL "CANMAR PRIDE" AND IN PERSONAM AGAINST CPS NO. 5 LIMITED, CPS NO. 3 LIMITED, CANMAR PRIDE LTD., CP SHIPS (UK) LTD. and ORIENT OVERSEAS CONTAINER LINE LTD.

BETWEEN:

FORD AQUITAINE INDUSTRIES SAS

and

FORD MOTOR COMPANY

and

FORD ST. LOUIS ASSEMBLY DIVISION

and

FORD LOUISVILLE ASSEMBLY DIVISION

and

HOWARD TERNES PACKAGING INC.

                                 Plaintiffs

                     and

THE VESSEL "CANMAR PRIDE"

and

CPS NO. 5 LIMITED

and

CPS NO. 3 LIMITED

and

CANMAR PRIDE LTD.

and

CP SHIPS (UK) LTD.

and

ORIENT OVERSEAS CONTAINER LINE LTD.

                             Defendants

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        September 28, 2004

REASONS FOR ORDER:                Richard Morneau, Prothonotary

DATED:                                              October 18, 2004

APPEARANCES:

SOLICITORS OF RECORD:

Date: 20041018

                 Docket: T-1291-03

Montréal, Quebec, October 18, 2004

Present:           Richard Morneau, Prothonotary

ADMIRALTY ACTION IN REM AGAINST THE VESSEL "CANMAR PRIDE" AND IN PERSONAM AGAINST CPS NO. 5 LIMITED, CPS NO. 3 LIMITED, CANMAR PRIDE LTD., CP SHIPS (UK) LTD. and ORIENT OVERSEAS CONTAINER LINE LTD.

BETWEEN:

FORD AQUITAINE INDUSTRIES SAS

and

FORD MOTOR COMPANY

and

FORD ST. LOUIS ASSEMBLY DIVISION

and

FORD LOUISVILLE ASSEMBLY DIVISION

and

HOWARD TERNES PACKAGING INC.

                                 Plaintiffs

                     and

THE VESSEL "CANMAR PRIDE"

and

CPS NO. 5 LIMITED

and

CPS NO. 3 LIMITED

and

CANMAR PRIDE LTD.

and

CP SHIPS (UK) LTD.

and

ORIENT OVERSEAS CONTAINER LINE LTD.

                             Defendants

ORDER

The motion by the defendant Orient Overseas Container Line Ltd. and the motion by the defendants CPS No. 5 Limited, CPS No. 3 Limited, CP Ships (UK) Ltd. and the vessel "Canmar Pride" to stay the action by the plaintiffs pursuant to section 50 of the Federal Courts Act is allowed, with costs in favour of both Orient Overseas Container Line Ltd. and the other defendants.

"Richard Morneau"

Prothonotary

Certified true translation

Jacques Deschênes, LLB