Lignum Ltd. v. Azur (The), docket T-75-91

Date: 19980917

Docket: T-75-91

BETWEEN:

     LIGNUM LTD. and SOFTWOOD TRADING LTD. and

     TEESPORT DISTRIBUTION LTD.,

     Plaintiffs,

     - and -

     THE SHIP "AZUR" and HER OWNERS, MANAGERS,

     CHARTERERS AND OPERATORS and CHASE FINANCE INC.

     and TRANSOCEAN MARITIME AGENCIES S.A.M. and FEDNAV LIMITED,

     Defendants.

     REASONS FOR ORDER

REED, J.

[1]      Upon the return of a Notice of Status Review, dated June 11, 1998, which review was conducted on July 30, 1998, I dismissed the plaintiffs' claim. At the time, I addressed my mind in a peripheral way to the issue of costs. I thought that an award of costs was probably inappropriate since the dismissal had been consequent upon the initiative of the Court issuing the Notice of Status Review and not consequent upon a motion brought by any of the parties. No award of costs was made in the July 30, 1998 Order.

[2]      Counsel for the defendants subsequently filed motions seeking costs as against the plaintiffs. It is agreed that if such are to be granted they should not be awarded, in any event, against Teesport Distribution Ltd. Its action against the defendants was discontinued by Order of the Court on July 28, 1993. Counsel for the plaintiffs vigorously defended the defendants' motion for costs, arguing that the defendants had contributed to the delays, that the situation had been one of "delays in concert" and, in any event, the costs that were being sought were inappropriately high and included items for which no costs should be awarded. Counsel for the plaintiffs also made reference to the fact that it had been at the Court's initiative that the plaintiffs' claim had been dismissed and therefore an award of costs was inappropriate.

[3]      Counsel for the defendants responded, stating that the defendants had not been a significant cause of the delay and indeed had on various occasions tried to push the case along. It was their position that their clients should not be prejudiced as a result of the Court having taken the initiative to dismiss the claim because it was not being prosecuted in a timely fashion.

[4]      This case was not a complex one. It involved a claim for cargo that had been stowed on deck in accordance with bills of lading claused accordingly. The amount claimed was approximately $33,000. The statements of defence are, as counsel for the defendants argued, "boiler plate" in nature. The affidavits and draft affidavits of documents are not extensive, and there appears to have been only one significant interlocutory motion. This was a motion by Teesport Distribution Ltd. and Lignum Ltd. to discontinue their actions. Costs were not awarded by the judge who heard that motion and success was divided. There was an examination for discovery of a representative of Lignum Ltd., which would appear to have lasted no longer than two hours.

[5]      I accept counsel for the defendants' arguments that the defendants were not a cause of the delay. At the same time, they acquiesced in it. It is appropriate to quote the comments of Mr. Justice MacKay in Knight Maintenance Ltd. v. Canada (Minister of Public Works) (1989), 31 F.T.R. 173 at 176, a decision dismissing the claim on motion by the defendant: "the apparently casual approach to the action by both parties mitigates against an award of costs in favour of one or other of the parties.". See also Collins v. Canada et al. (1994), 87 F.T.R. 82. Also, I continue, to find it particularly significant that the dismissal of the plaintiffs' action occurred as a result of the Court's initiative and not that of the defendants.

[6]      In all the circumstances, I have concluded that an award of costs is not appropriate.

                             (Sgd.) "B. Reed"

                                 Judge

Vancouver, British Columbia

17 September 1998

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-75-91

STYLE OF CAUSE:          Lignum Ltd. and Softwood Trading Ltd. and others

                     v.

                     The Ship "Azur" and Her Owners and others

REASONS FOR ORDER OF REED, J.

dated September 17, 1998

SOLICITORS OF RECORD:

     P. O. Box 48800

     2100 - 1111 West Georgia St.

     Vancouver, B.C.

     V7X 1K9