Mercator Ship'S Supplies (1985) Ltd. v. Amican Navigation Inc., docket T-904-93

     Date: 19981009

     Docket: T-904-93

MONTRÉAL, QUEBEC, THE 9^TH DAY OF OCTOBER, 1998

Present:      RICHARD MORNEAU, PROTHONOTARY

Between:

MERCATOR SHIP"S SUPPLIES (1985) LTD.

Plaintiff

AND

AMICAN NAVIGATION INC.

Defendant

JUDGMENT

     The plaintiff"s action is allowed. The defendant is ordered to pay the plaintiff the sum of $7,252.31, to which shall be added pre- and post-judgment interest calculated at the commercial base rate plus 2% per year, with costs.

Richard Morneau

Prothonotary

Certified true translation

Bernard Olivier

     Date: 19981009

     Docket: T-904-93

Between:

MERCATOR SHIP"S SUPPLIES (1985) LTD.

Plaintiff

AND

AMICAN NAVIGATION INC.

Defendant

REASONS FOR JUDGMENT

RICHARD MORNEAU, PROTHONOTARY:

[1]      This is an action for unpaid invoices brought by the plaintiff following the supply of goods to the defendant.

[2]      The central issue at trial was whether the defendant was itself accountable for the sums claimed or whether the defendant should be considered a mandatary in the same capacity as the mandatary, Mr. Jos DeBelie, who acted on behalf of the defendant in ordering the goods from the plaintiff.

[3]      Following the testimony by Messrs. Scholes and Zeagman on behalf of the plaintiff, I am fully satisfied that at all relevant times, that is, between December 1991 and the late spring of 1992, the plaintiff was justified in its belief that the defendant was the principal mandator and was ultimately responsible for paying the bills.

[4]      Although during the relevant period the plaintiff"s manager discussed with his counterpart with the defendant the supply of some goods, it appears that the latter did not try to establish that his corporation should not be considered as the one on behalf of which the goods were ordered.

[5]      Although the defendant did seek to establish at the hearing that it was acting only as a mandatary for the owners or charterers of the vessel that received the goods, it did not, in my opinion, put in evidence the facts needed to reach such a conclusion. The fact that a minor invoice in the case appears to make a distinction between the defendant and the vessel"s owners is not sufficient to allow the Court to embrace the defendant"s position. In this regard, the defendant was, for the purposes of this action, in possession of the charter-party governing the use of the vessel. It elected not to introduce this as evidence. This document might possibly have shed some useful light on the situation in dispute.

[6]      For these reasons, I am of the opinion that the plaintiff"s action should be allowed, in accordance with the prayer for relief in its statement of claim, an amendment to which in regard to the amount claimed was allowed at trial. Judgment shall issue accordingly.

Richard Morneau

Prothonotary

MONTRÉAL, QUEBEC

October 9, 1998

Certified true translation

Bernard Olivier

Federal Court of Canada

Court file no. T-904-93

BETWEEN

MERCATOR SHIP"S SUPPLIES (1985) LTD.

Plaintiff

- and -

     AMICAN NAVIGATION INC.

Defendant

REASONS FOR JUDGMENT

FEDERAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE NO.                  T-904-93

STYLE:                  MERCATOR SHIP"S SUPPLIES (1985) LTD.

     Plaintiff

                     AND

                     AMICAN NAVIGATION INC.

     Defendant

PLACE OF HEARING:          Montréal, Quebec

DATE OF HEARING:          October 7, 1998

REASONS FOR JUDGMENT OF RICHARD MORNEAU, PROTHONOTARY

DATED:                  October 9, 1998

APPEARANCES:

Alain Pilotte                              for the plaintiff

Caroline Jacques                          for the defendant

SOLICITORS OF RECORD:

Mr. Alain Pilotte                          for the plaintiff

Montréal, Quebec

Sproule, Castonguay, Pollack                  for the defendant

Ms. Caroline Jacques

Montréal, Quebec