Date: 20070518
Docket: A-599-06
Citation: 2007 FCA 194
CORAM: DESJARDINS
J.A.
NOËL
J.A.
NADON
J.A.
BETWEEN:
MARITIMA DE ECOLOGIA, S.A. de
C.V.
Appellant
and
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP MAERSK DEFENDER ALSO
KNOWN AS
VOYAGER SEA, I.S. ATLANTIC CORPORATION
INC.,
I.S. PACIFIC CORPORATION INC. and
SECUNDA MARINE SERVICES LTD.
Respondents
REASONS FOR JUDGMENT
NADON J.A.
[1]
Before us
are an appeal and a cross-appeal from a decision of Shore J. of the Federal
Court, dated December 22, 2006, pursuant to which he struck out the in rem
portions of two Statements of Claim filed by the appellant and stayed the in
personam portions thereof.
[2]
For the
reasons that follow, I conclude that the appeal should be dismissed and that
the cross-appeal should be allowed.
The Facts
[3]
The
appellant, a Mexican corporation, is in the business of designing, developing
and providing to the Mexican offshore oil exploration and production industry, specialized
ships known as “well-testing ships” or “ecological ships” for the purpose of, inter
alia, minimizing environmental damage.
[4]
One of the
appellant’s clients is Pemex Exploracion y Produccion (“Pemex”), a Mexican
government-owned oil company. Prior to the events which have given rise to
these proceedings, two well-testing ships, namely the TOISA PISCES and
the BOURBON OPALE were provided by the appellant to Pemex in fulfillment
of its contractual obligations. The TOISA PISCES was chartered from
Sealion Shipping Ltd. of Farnham, England,
and the BOURBON OPALE from Bourbon Offshore Norway, Fosnavaj, Norway. Both ships, prior to their
delivery to Pemex, were redesigned and converted so as to enable the appellant
to meet Pemex’s specific needs.
[5]
In late
2005, Pemex informed the appellant that it was interested in obtaining the use
of a third “well-testing ship”. With that purpose in mind, the appellant
entered into discussions with the respondent Secunda Marine Services Ltd.
(“Secunda”) of Dartmouth, Nova Scotia, with a view to finding a suitable
vessel for delivery to Pemex.
[6]
On March
10, 2006, Secunda advised the appellant that it had entered into a binding
contract pursuant to which Secunda or a company controlled by Secunda would
purchase the Danish vessel Maersk Defender and that it would make the
vessel available to the appellant for a period of 1,826 days. Secunda also
advised the appellant that the vessel would be renamed Voyager Sea.
[7]
During the
course of the discussions between Secunda and the appellant, it was agreed that
following the purchase of the MAERSK DEFENDER, the vessel would be
modified so as to meet Pemex’s requirements. More particularly, it was agreed
that the new owners would spend approximately $40 million on conversion work
and that upon completion of the work, the vessel would be delivered to the
appellant in Mexico between June 18 and August 18,
2007.
[8]
By Memorandum
of Agreement dated March 2006, the owners of the Maersk
Defender,
A.P. Moller-Maersk A/S, agreed to sell their vessel to Secunda and to the
respondent I.S. Atlantic Corporation Inc. (“Atlantic”).
[9]
On July 5,
2006, the appellant entered into a charter party in the Bimco supplytime
charter party form (the “charter party”) with Atlantic pursuant to which Atlantic
agreed and undertook, inter alia, to deliver the ship to the appellant
in Mexico between June 18 and August
18, 2007. Clause 46 of the charter party specifically provides that the vessel
has been sublet by the appellant to Pemex pursuant to Pemex contract no.
418236908 and that Atlantic has consented to the subcharter in accordance with
clause 17 of the charter party.
[10]
In early
November 2006, Atlantic obtained information which
led it to fear that Mexican authorities would not issue a navigation permit to their
vessel, a foreign flagged vessel, for a period longer than two years. As a
result, Atlantic advised the appellant that the charter party had been
frustrated and that, in any event, it was excused from performance by reason of
force majeure.
[11]
In the event,
Atlantic did not purchase the Maersk Defender
in December 2006 as it had undertaken to do. The vessel was purchased by the
respondent I.S. Pacific Corporation (“Pacific”) on December 12, 2006, renamed
the Emerald
Sea and
chartered to Helix Energy Solutions Group Inc. (“Helix”).
[12]
On
December 1, 2006, the appellant invoked the London Arbitration clause of the
charter party (clause 31), delivered notice to Atlantic of its decision to
arbitrate in London and appointed, as required by
the arbitration clause, a London arbitrator. Specifically, the
appellant called upon Atlantic to appoint its arbitrator within 14 days failing
which the appellant’s arbitrator would be appointed to act as sole arbitrator.
[13]
On
December 4, 2006, for the sole purpose of obtaining interim protective orders
and security in respect of the London Arbitration, the appellant commenced an
action in the Federal Court (file T-2142-06) against the owners and all others
interested in the ship MAERSK DEFENDER, also known as the VOYAGEUR SEA, and also against Atlantic and Secunda.
[14]
On
December 12, 2006, the appellant commenced a second action in the Federal Court
(file T-2185-06), an action identical to the first one except for the addition
as a defendant of the respondent Pacific. Like the first action, the second
action was instituted for the sole purpose of obtaining interim protective
orders and security in respect of the London Arbitration.
[15]
I point
out that on December 4, 2006, when the appellant commenced its first action in
the Federal Court, the Maersk Defender had not yet been sold to
Pacific. As to the second action, commenced on December 12, 2006, it appears that
the appellant was not aware at that time of the sale of the vessel to Pacific. As
a result, the appellant sought in both actions, at paragraphs 14 and 15
respectively of its Statements of Claim, orders requiring specific performance
of the charter party and delivery of the vessel to Atlantic by December 10,
2006. Further, the appellant sought orders enjoining and restraining the
respondents from impeding, preventing or interfering with the passing of title
to and delivery of possession of the ship to Atlantic from A.P. Moller-Maersk A/S.
[16]
On
December 12, 2006, in action T-2185-06, the vessel was arrested in Vancouver. At the time of the arrest, the
vessel was owned by Pacific which had purchased it earlier in the day from A.P.
Moller-Maersk A/S.
[17]
On
December 14, 2006, the respondents filed motions in both actions seeking the
following orders:
·
Pacific
sought the dismissal of the in rem portion of the Statements of Claim
and the release from arrest of its vessel;
·
Pacific
also sought the dismissal of the in personam portion of the Statement of
Claim filed in action T-2185-06;
·
Secunda sought
the dismissal of the in personam portion of both Statements of Claim;
·
Atlantic
also sought the dismissal of the in personam portion of both Statements
of Claim and, in the alternative, that the proceedings be stayed pending
arbitration in London.
Decision Below
[18]
The
motions were heard on December 21, 2006, and on the following day, Shore J.
made the Order which is the subject of this appeal.
[19]
First,
with respect to the in rem proceedings, the Judge concluded that the
Court’s jurisdiction in rem could not be exercised against the ship
because the requirements of subsection 43(3) of the Federal Courts Act
(the “Act”) had not been met. Further, relying on this Court’s decision in Paramount
Enterprises International Inc. v. An Xin Jiang (The), 2000 F.C.J. No. 2066
(F.C.A.) (Q.L.), he concluded that the requirements of subsection 43(2) of the
Act had not been met and hence, that the vessel was not “the subject of the
action” within the meaning of the subsection. On the basis of these
conclusions, the learned Judge struck the in rem proceedings and ordered
the release from arrest of the vessel.
[20]
Second, relying
on section 50 of the Act and the London Arbitration clause, the Judge stayed
the in personam proceedings in both actions.
[21]
The
appellant challenges the Judge’s Order in regard to both the in rem and in
personam proceedings. The cross-appellants, the respondents Secunda and
Pacific, challenge only the in personam portion of the Judge’s Order.
Secunda seeks an order striking both actions and Pacific seeks an order
striking the appellant’s action in T-2185-06.
[22]
I should
add that shortly prior to the hearing, the parties informed us that the
appellant had accepted Atlantic’s repudiation of the charter party. As a
result, the appellant continues to seek damages against Atlantic, which is the subject of the London
Arbitration proceedings, but no longer seeks specific performance of the
charter party.
The in rem Proceedings
[23]
I begin
with the in rem proceedings which the Judge struck because of his view that
the requirements of subsections 43(2) and 43(3) of the Act had not been met. These
provisions and subsection 43(1) of the Act are relevant to the disposition of
this appeal and they read as follows:
|
43. (1) Subject to subsection (4), the
jurisdiction conferred on the Federal Court by section 22 may in all cases
be exercised in personam.
(2) Subject to subsection (3), the
jurisdiction conferred on the Federal Court by section 22 may be exercised in
rem against the ship, aircraft or other property that is the
subject of the action, or against any proceeds from its sale that
have been paid into court.
(3) Despite subsection (2), the jurisdiction conferred on the Federal Court
by section 22 shall not be exercised in rem with respect to a claim
mentioned in paragraph 22(2)
(
e), ( f), ( g), ( h), ( i), ( k), ( m), ( n),
(
p) or ( r) unless, at the time of the commencement of the action, the
ship, aircraft or other property that is the subject of the
action is beneficially owned by the person who was the beneficial owner at
the time when the cause of action arose.
[Emphasis added]
|
43. (1) Sous réserve du paragraphe (4), la Cour
fédérale peut, aux termes de l'article 22, avoir compétence en matière
personnelle dans tous les cas.
(2) Sous réserve du paragraphe (3), elle peut,
aux termes de l'article 22, avoir compétence en matière réelle dans
toute action portant sur un navire, un aéronef ou d'autres biens, ou
sur le produit de leur vente consigné au tribunal.
(3) Malgré le paragraphe (2), elle ne peut exercer la compétence en matière
réelle prévue à l'article 22, dans le cas des demandes visées aux alinéas
22(2) e), f), g), h), i), k), m), n), p) ou r), que si, au moment où
l'action est intentée, le véritable propriétaire du navire, de
l'aéronef ou des autres biens en cause est le même qu'au moment du fait
générateur.
[Je souligne]
|
[24]
Also of
relevance are subsections 22(1) and paragraph 22(2)(i) of the Act, which
provide:
|
22.
(1) The Federal Court has concurrent original jurisdiction, between subject
and subject as well as otherwise, in all cases in which a claim for relief is
made or a remedy is sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within the class of subject
of navigation and shipping, except to the extent that jurisdiction has been
otherwise specially assigned.
(2) Without limiting the generality of subsection (1), for greater certainty,
the Federal Court has jurisdiction with respect to all of the following:
…
(i) any claim arising out of any agreement
relating to the carriage of goods in or on a ship or to the use or hire
of a ship whether by charter party or otherwise;
[Emphasis added]
|
22.
(1) La Cour fédérale a compétence concurrente, en première instance, dans les
cas — opposant notamment des administrés — où une demande de réparation ou un
recours est présenté en vertu du droit maritime canadien ou d'une loi
fédérale concernant la navigation ou la marine marchande, sauf attribution
expresse contraire de cette compétence.
(2) Il demeure entendu que, sans préjudice de la portée générale du
paragraphe (1), elle a compétence dans les cas suivants :
…
(i) une demande fondée sur une convention
relative au transport de marchandises à bord d’un navire, à l’usage ou
au louage d’un navire, notamment par charte-partie;
[Je souligne]
|
[25]
With
respect to subsection 43(2), there can be no doubt that the Judge erred in law.
When the Judge rendered his Order, the Supreme Court of Canada had not yet
rendered its decision in Phoenix Bulk Carriers Ltd. v. M/V Swift Fortune (The),
[2007] SCC 13, which overturned this Court’s decision in Paramount, supra.
Because of his reliance on Paramount, supra, the Judge concluded that the
vessel was not “the subject of the action”. In Phoenix, supra, the
Supreme Court rejected the narrow view adopted by this Court in Paramount,
supra, with respect to the meaning of the words “the subject of the action”
found in subsection 43(2) of the Act for a broader approach which I framed in
the following terms at paragraph 47 of our decision in Kremikovtzi Trade v.
Phoenix Bulk Carriers Limited et al, 2006 FCA 1:
[47] I am therefore
of the view that subsection 43(2) does not require a physical nexus between the
cargo and the vessel in order to give rise to in rem rights. Rather,
subsection 43(2) proposes identifiability of the property as the controlling
factor so as to ensure that the scope of the in rem proceedings is not
unduly enlarged. In other words, the action in rem must relate to the
specific property contemplated in the contract at issue. To the extent
that the cargo can be clearly identified as being the one contemplated under
the contract, the breach of which is alleged by Phoenix in its Statement of
Claim (as was alleged by Paramount in Paramount,
supra), the cargo under arrest is the "subject
of the action". I should emphasize that there is no issue in this appeal
with regard to the identity of the cargo arrested by Phoenix.
[Emphasis
added]
[26]
On the
facts before us, no conclusion other than that the Maersk
Defender is
“the subject of the action” is possible. However, that conclusion does not put
an end to the discussion of whether the jurisdiction conferred on the Federal
Court by section 22 of the Act could be exercised in rem against the
vessel. I now turn to a discussion of subsection 43(3).
[27]
For this
part of the discussion, I begin by pointing out that the arbitration
proceedings in London concern a dispute between the appellant and Atlantic,
that no other party is involved in the arbitration and that the proceedings commenced
in Canada by the appellant do not seek any remedy against any of the respondents
other than the remedies which I outlined in paragraph 15 of these Reasons,
namely remedies pertaining to specific performance of the charter party. As I
have already indicated, the appellant no longer seeks such remedies by reason
of its acceptance of Atlantic’s repudiation of the charter party.
[28]
I further point
out that at the time of its arrest on December 12, 2006, the vessel did not
belong to Atlantic but to Pacific. Prior to December
12, 2006 and, in any event, between December 1 and 12, 2006, the vessel belonged
to A.P. Moller-Maersk A/S.
[29]
The
question which thus arises is whether in those circumstances the appellant was
entitled to commence in rem proceedings against the vessel and to arrest
it? In my view, the appellant was not so entitled.
[30]
Subsection
43(2) of the Act clearly states that, subject to subsection (3), the Court may
exercise in rem jurisdiction against a ship “that is the subject of the
action”. However, subsection (3) provides that with regard to certain claims
and, namely those arising under paragraph 22(2)(i), the jurisdiction in
rem can only be exercised where, at the time of the commencement of the
action, the ship is “beneficially owned by the person who was the beneficial
owner at the time when the cause of action arose”. In other words, before the
Court can exercise its jurisdiction in rem, it must be demonstrated that
the beneficial owner of the ship was the same at the time the cause of action
arose and when the action was commenced.
[31]
As the
Judge was of the view that the appellant’s cause of action arose on December 1,
2006, he had no difficulty concluding that the requirements of subsection 43(3)
had not been met in that the beneficial owner of the ship at the time the cause
of action arose was not the beneficial owner of the ship when the action was
commenced. In my view, in so concluding, the Judge made no error. I am
satisfied, on the facts before us, that the appellant’s cause of action did
arise on December 1, 2006.
[32]
In any
event, the fact that the beneficial ownership of the ship may have been the
same at the two relevant dates is not sufficient to confer in rem
jurisdiction on the Federal Court. The law is clear that the Court’s
jurisdiction in rem can only be exercised against a ship where there is in
personam liability on the part of its owner. In other words, unless the owner’s
liability is engaged, the Federal Court’s in personam jurisdiction under
section 22 and subsection 43(1) of the Act cannot be exercised in rem
against the ship.
[33]
That view
was enunciated by Collier J. in Westcan Stevedoring Ltd. v. Armar (The),
[1973] F.C. 1232 (F.C.T.D.), where the learned Judge explained that it was not
permissible for the Court to exercise in rem jurisdiction under 43(2) against
a vessel whose owner had no personal liability towards the claimant. In the
Judge’s opinion, it was the owner’s in personam liability which allowed
the Court to exercise its jurisdiction in rem against the ship.
[34]
More
recently, that point of view was reaffirmed by this Court in Feoso Oil Ltd.
v. Ship “Sarla” (1995), 184 N.R. 307. At issue in Feoso Oil, supra,
was whether the owners of the ship were entitled to a summary judgment
dismissing the action brought against them in rem by the supplier of
unpaid bunkers. The shipowners argued that as there was no privity of contract
between them and the supplier, the Court’s jurisdiction could not be exercised in
rem against their vessel.
[35]
In
concluding that there was a “genuine issue” of fact which only a trial could
resolve and, hence, dismissing the shipowners’ motion for summary judgment, the
Court made it clear that its jurisdiction under paragraph 22(2)(m) of
the Act, i.e. “any claim in respect of goods, materials or services wherever
supplied to a ship for the operation or maintenance of the ship, including,
without restricting the generality of the foregoing, claims in respect of
stevedoring and lighterage”, could not be exercised in rem unless there
was liability on the part of the ship’s owners. At paragraphs 10 and 11 of his
Reasons for the Court, Stone J.A. explained the principle in the following
terms:
[10] Although
the issue in this appeal goes to the correctness of the order, it is important
to understand the principles of Admiralty law upon which the case and its
merits must ultimately turn. According to the appellant, the bunkers in
question were supplied to the defendant Ship upon a request made by or on
behalf of owners and therefore that the appellant is entitled to proceed by way
of this action in rem. The court’s jurisdiction over such a claim is
conferred by s. 22(2)(m) of the Federal Court Act, which reads:
(m) Any claim in
respect of goods, materials or services wherever supplied to a ship for the
operation or maintenance of the ship, including, without restricting the
generality of the foregoing, claims in respect of stevedoring and lighterage;
The goods and services
of the kind referred to in this paragraph are sometimes described as
“necessaries”, a term which appeared in former enactments of the United
Kingdom.
By virtue of subsections 43(2) and (3) of the Act, the jurisdiction conferred
by s. 22(2)(m) shall not be exercised in rem:
… unless, at the time of
the commencement of the action, the ship, aircraft or other property that is
the subject of the action is beneficially owned by the person who was the
beneficial owner at the time when the cause of action arose.
[11] What is
clear from these provisions is that the right to proceed in rem for a
claim falling within paragraph 22(2)(m) [NOTE: the same goes with
respect to a claim falling within paragraph 22(2)(i)] exists only if at
the time the action is commenced the ship is beneficially owned by the person
who was the beneficial owner at the time the cause of action arose. (see Mount
Royal/Walsh Inc. v. Ship Jensen Star et al., [1990] F.C. 199; 99 N.R. 42
(F.C.A.)). There is further refinement. It is well established that the
fact that beneficial ownership has not changed since the necessaries were
supplied is not in itself sufficient to support a statutory right in rem.
The cases are all to the same effect, that it is only where the owners of a
ship have incurred a debt for necessaries supplied that the creditor acquires a
right to proceed in rem against their ship. Thus, in Ship
Tolla, Re. [1921] P. 22, a claim for necessaries was asserted in an action in
rem for expenses incurred at the request of the master while the ship was
under a time charter. At page 24, Hill J. stated the applicable principle as
follows:
Unless there is a
liability on the part of the owners there cannot be a remedy in rem
against the ship.
(See also e.g. Westcan
Stevedoring Ltd. v. Ship Armar, [1973] F.C. 1232 (T.D.) and the Jensen
Star, supra) In the case at bar, unless it be exceptional, application of
the above principle will mean that the appellant could not sustain an action in
rem in the absence of proof that the bunkers were supplied to the defendant
Ship at the request of owners or by someone acting on their behalf and in a
position to bind them.
[Emphasis
added]
[36]
On the
basis of these authorities, I must conclude that the Court could not exercise in
rem jurisdiction against the vessel. The only claim asserted by the
appellant is that which is being asserted in the London Arbitration against
Atlantic and in respect of which the appellant has commenced actions in the
Federal Court in order to obtain interim protection. As I have already made
clear, Atlantic is not and has never been the
owner of the MAERSK DEFENDER. Consequently, whatever the validity of the
appellant’s claim against Atlantic, the MAERSK DEFENDER cannot be
arrested in respect of that claim. At all material times herein, the vessel was
owned by A.P. Moller-Maersk A/S and the respondent Pacific. The appellant has
not commenced any proceedings, nor has it sought any remedies, against these
parties. Consequently, it is my view that there is simply no basis, on the
facts before us, which would allow the Court to exercise in rem
jurisdiction against the vessel.
[37]
Even
assuming that the appellant’s cause of action arose on December 12, 2006, i.e.
the date on which it commenced its second action and arrested the vessel, the
appellant still does not succeed since it has asserted no claim, nor sought any
remedy, against Pacific. Thus, the Judge made no error when he struck the in
rem portion of the Statements of Claim and ordered the release from arrest
of the vessel.
The in Personam Proceedings
[38]
I now turn
to the in personam proceedings which the Judge stayed pending London
Arbitration. I begin by setting out Articles 8 and 9 of the Commercial
Arbitration Code (the “Code”), which is a schedule to the Commercial
Arbitration Act, R.S. 1985, c. 17 (2nd Supp. Schedule), which
provide as follows:
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ARTICLE 8
Arbitration Agreement
and
Substantive Claim
before Court
(1)
A court before which an action is brought in a matter which is the subject of
an arbitration agreement shall, if a party so requests not later than when
submitting his first statement on the substance of the dispute, refer the
parties to arbitration unless it finds that the agreement is null and void,
inoperative or incapable of being performed.
(2)
Where an action referred to in paragraph (1) of this article has been
brought, arbitral proceedings may nevertheless be commenced or continued, and
an award may be made, while the issue is pending before the court.
ARTICLE 9
Arbitration Agreement
and
Interim Measures by
Court
It
is not incompatible with an arbitration agreement for a party to request,
before or during arbitral proceedings, from a court an interim measure of
protection and for a court to grant such measure.
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ARTICLE 8.
Convention d’arbitrage
et actions intentées quant au fond devant un tribunal
1.
Le tribunal saisi d’un différend sur une question faisant l’objet d’une
convention d’arbitrage renverra les parties à l’arbitrage si l’une d’entre
elles le demande au plus tard lorsqu’elle soumet ses premières conclusions
quant au fond du différend, à moins qu’il ne constate que la convention est
caduque, inopérante ou non susceptible d’être exécutée.
2.
Lorsque le tribunal est saisi d’une action visée au paragraphe 1 du présent
article, la procédure arbitrale peut néanmoins être engagée ou poursuivie et
une sentence peut être rendue en attendant que le tribunal ait statué.
ARTICLE 9.
Convention d’arbitrage
et mesures provisoires prises par un tribunal
La
demande par une partie à un tribunal, avant ou pendant la procédure
arbitrale, de mesures provisoires ou conservatoires et l’octroi de telles
mesures par un tribunal ne sont pas incompatibles avec une convention
d’arbitrage.
|
[39]
Relying on
Article 9 of the Code, the appellant submits that the learned Judge erred in
staying the in personam proceedings because, as a result, it will be
prevented from obtaining interim measures of protection pending the London
Arbitration.
[40]
The
respondents argue that the Judge made no error in staying the two actions, as
he was bound to do so by reason of Article 8 of the Code. Further, the
respondents Secunda and Pacific, the cross-appellants, say that the appellant
is not entitled under Article 9 of the Code to interim relief in support of a
foreign arbitration against entities which are not parties to the arbitration
and from whom no relief is sought. They further say that the Judge ought not to
have stayed the proceedings commenced against them, but ought to have dismissed
them on the ground that they reveal no cause of action.
[41]
Specifically,
Secunda and Pacific say that the appellant has not brought any action against
them since the only purpose of the actions commenced in the Federal Court is to
protect the appellant’s rights against Atlantic. At paragraph 82 of their Memorandum of
Fact and Law, the cross-appellants say:
82. The Appellant
has not brought any action in the Federal Court with the exception of T-2142-06
and T-2185-06 that have been brought solely in support of the London
Arbitration. Neither Secunda nor Pacific are even parties to the London
Arbitration and the Appellant has not sought any determination involving them or
sought any relief from them in that arbitration. In other words, the Appellant
has not requested any determination of the merits of any allegations against
Secunda or Pacific either in this Court or the London Arbitration. Accordingly,
it is plain and obvious that there is no cause of action against Secunda or
Pacific and the claims must be struck out.
[42]
In
response to these submissions, the appellant asserts that in personam
claims against Secunda and Pacific are sustainable and valid in law. More particularly,
the appellant says that it has pleaded that the vessel was wrongly transferred
to Pacific and that the purpose of the transfer was to avoid performance of the
charter party (see paragraph 10 of action T-2185-06). The appellant adds that when
that allegation is read in conjunction with its claim for damages found at
paragraph 1(d) of the Statements of Claim and that Secunda guaranteed
Atlantic’s obligations, it is obvious that it has pleaded sufficient facts to
support a cause of action.
[43]
In my view,
the submissions made by Secunda and Pacific must be right. It is clear from the
pleadings themselves that the appellant has not commenced an action against
either of these respondents. Paragraph 13 of the first action and paragraph 14
of the second action are clear and unambiguous. They read as follows:
This action is brought
solely for the purpose of obtaining interim protective orders including
injunctions and security, in connection with the London Arbitration.
[Emphasis
added]
[44]
In other
words, the appellant has brought these proceedings for the sole purpose of obtaining
security in respect of its London Arbitration proceedings commenced against Atlantic. It has not brought any
action against Secunda or Pacific, nor does it seek any remedy against these
respondents. Consequently, the proceedings reveal no cause of action against
Secunda and Pacific and they must be struck.
[45]
With
respect to the proceedings commenced against Atlantic, they must be stayed as
required by Article 8 of the Code unless they can be justified under Article 9
thereof. Because the appellant has accepted Atlantic’s repudiation of the
charter party, the remedies sought by the appellant in its Statements of Claim,
namely interim and interlocutory injunctions requiring specific performance of
the charter party and/or enjoining and restraining the defendants from
impeding, preventing or interfering with the passing of title to and delivery
of possession of the ship to Atlantic from A.P. Moller-Maersk A/S are no longer
sought. As a result, the proceedings presently seek no interim measure of
protection in respect of the London Arbitration.
[46]
The
appellant says that the stay should be lifted because it may, in the future,
seek other injunctions or court orders and even possibly arrest the ship in
order to obtain security for its damages against Atlantic. The appellant says that unless the stay
is lifted, it cannot seek interim security.
[47]
As I
indicated earlier, as the Statements of Claim presently stand, they seek no
remedy whatsoever in connection with the London Arbitration. Hence, it cannot
be said that these proceedings fall within Article 9 of the Code. Consequently,
I find that the Judge made no error in staying them. Should the appellant, at a
later date, have grounds to seek an interim measure of security in connection
with the London Arbitration, it may apply to the Court for an order lifting the
stay or it may, if it prefers, institute separate proceedings seeking a precise
remedy.
[48]
I would
also add that nothing prevented nor prevents the appellant from commencing
legal proceedings against both Secunda and Pacific for breach of the charter
party and for tortious interference in respect thereof.
Disposition
[49]
For these
reasons, I would therefore dismiss the appeal, allow the cross-appeal and
rendering the order which ought to have been rendered, I would strike the in
personam actions insofar as they are directed at the respondents Secunda
and Pacific. I would also grant the respondents their costs herein and below.
“M.
Nadon”
“I
concur.
Alice
Desjardins J.A.”
“I
agree.
Marc
Noël J.A.”
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