Stella-Jones Inc. v. Hawknet Ltd., docket T-1942-98

     Date: 20000621

     Docket: T-1942-98

MONTREAL, QUEBEC, JUNE 21, 2000

BEFORE: RICHARD MORNEAU, PROTHONOTARY

Between:

     STELLA-JONES INC. and

AXA BOREAL ASSURANCES INC.,

     Plaintiffs,

     AND

     HAWKNET LTD. and

     SUNLIGHT COMPANIA NAVIERA S.A. and

SEBILAN COMPANIA NAVIERA S.A. and

THE OWNERS AND ALL OTHERS INTERESTED

IN THE SHIP MARIANA (Ex "ANAMELI"),

    

     Defendants.

     REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY

[1]      The Court has before it a motion by the plaintiffs that judgment for failure to plead be registered, or alternatively, that there be a temporary stay order in the case at bar to allow the defendants to request and obtain a stay of the arbitration proceedings while this Court decides whether the issue between the parties should be subject to this Court's jurisdiction or to arbitration.

[2]      I do not intend to dismiss the motion at bar outright or to grant the remedy at the opposite extreme, namely a judgment by default.

[3]      After listening to counsel for the parties and reading their written submissions, it seems to me that a measure of agreement existed between the parties for a long period (August 28, 1998 to April 4, 2000) which essentially amplified the letter of agreement of August 28, 1998 - which does not itself strictly speaking include the general average claim by the owners of the vessel - and which was that the Federal Court should be allowed initially to decide the question of jurisdiction.

[4]      I think that the interests of justice require this agreement to prevail. However, I do not intend to issue the temporary stay sought by the plaintiffs since the condition attached thereto amounts to indirectly issuing an anti-suit injunction within the meaning of Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897.

[5]      Pursuant to Rule 53 of the Federal Court Rules, 1998, I intend to order that if, by July 4, 2000, the defendants have not obtained the stay guarantee mentioned in point (b) of the plaintiffs' notice of motion, that is more specifically, the "condition precedent" mentioned therein, they shall on or before July 11, 2000 serve and file their defence to the plaintiffs' action in this Court, otherwise the plaintiffs may apply forthwith for a judgment by default against them.

[6]      Costs to follow.

                             Richard Morneau

                             Prothonotary

Certified true translation

Martine Brunet, LL. B.

Federal Court of Canada      Trial Division      Date: 20000621      Docket: T-1942-98 Between: STELLA-JONES INC. and AXA BOREAL ASSURANCES INC.,      Plaintiffs, AND HAWKNET LTD. and SUNLIGHT COMPANIA NAVIERA S.A. and SEBILAN COMPANIA NAVIERA S.A. and THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP MARIANA (Ex "ANAMELI"),      Defendants.      REASONS FOR ORDER AND ORDER

FEDERAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No.:          T-1942-98

STYLE OF CAUSE:          STELLA-JONES INC. and

AXA BOREAL ASSURANCES INC.,

Plaintiffs,

AND

HAWKNET LTD. and

SUNLIGHT COMPANIA NAVIERA S.A. and

SEBILAN COMPANIA NAVIERA S.A. and

THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP MARIANA (Ex "ANAMELI"),

Defendants.

PLACE OF HEARING:              Montréal, Quebec

DATE OF HEARING:              June 19, 2000

REASONS FOR ORDER BY:          RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS FOR ORDER:      June 21, 2000

APPEARANCES:

Louis Buteau                          for the plaintiffs

Sean Harrington                      for the defendant Mariana Maritime S.A.

SOLICITORS OF RECORD:

Sproule, Castonguay, Pollack              for the plaintiffs

Montréal, Quebec

Borden, Ladner, Gervais                  for the defendant Mariana Maritime S.A.

Montréal, Quebec