Date: 20030811
Docket: T-2214-00
Montréal, Quebec, August 11, 2003
Present: Mr. Richard Morneau, Prothonotary
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
FINLANDIA CHEESE INC.
and
McCADUM CHEESE COMPANY
and
VALIO LTD JUUSTOVARASTO D.B.A. "VALIO FINNISH CO-OP"
and
THE PARTIES AND ALL OTHERS INTERESTED
IN THE CARGO STOWED IN CONTAINER No. CRLU518051-8 LADEN
ABOARD THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
Plaintiffs
and
SHORELINE SHIPPING S.A.
and
SACKS MARITIME S.A.
and
TARGET MARINE S.A.
and
NORASIA CONTAINER LINES LTD.
and
MAIRITIME FREIGHT AMERICA CORP.
and
THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
AND THE OWNERS AND ALL OTHERS INTERESTED
IN THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
Defendants
ORDER
This motion by the plaintiffs is allowed, costs to follow, and it is ordered that the deadline for service of the plaintiff's statement of claim is extended to December 2, 2001 and that Mairitime FreightAmerica Corp., as of that date of December 2, 2001, was validly served.
The parties are further required, within twenty (20) days of this order, to submit to the Court - jointly inasmuch as this can be done - a schedule that will cover the measures to be taken subsequently in this proceeding.
Richard Morneau
Prothonotary
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
Date: 20030811
Docket: T-2214-00
Citation: 2003 FC 969
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
FINLANDIA CHEESE INC.
and
McCADUM CHEESE COMPANY
and
VALIO LTD JUUSTOVARASTO D.B.A. "VALIO FINNISH CO-OP"
and
THE PARTIES AND ALL OTHERS INTERESTED
IN THE CARGO STOWED IN CONTAINER No. CRLU518051-8 LADEN
ABOARD THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
Plaintiffs
and
SHORELINE SHIPPING S.A.
and
SACKS MARITIME S.A.
and
TARGET MARINE S.A.
and
NORASIA CONTAINER LINES LTD.
and
MAIRITIME FREIGHT AMERICA CORP.
and
THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
AND THE OWNERS AND ALL OTHERS INTERESTED
IN THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is a motion by the plaintiffs for the purposes of obtaining an order validating the service of their statement of claim on February 22, 2001 on the defendant Mairitime Freight America Corp. (hereinafter MFA) or, in the alternative, for an extension of the time for making such service.
Facts and analysis
[2] The relevant context for understanding this motion may be related in its essential lines as follows.
[3] As a result of damages caused to a cargo of cheese owing, according to the plaintiffs, to a fluctuation in temperature within the container that was carrying the said cheese by water, the plaintiffs, as parties having an interest in this cargo, faxed various parties, including MFA, a notice of claim on November 3, 2000. In the plaintiffs' opinion, MFA was in this case the carrier under the contract between the parties.
[4] This mailing of November 3, 2000 consisted of a letter from the then counsel for the plaintiffs on which the email address and file number of the solicitor were written. This letter or mailing of November 3, 2000 included, inter alia, the relevant bill of lading and various experts' reports.
[5] MFA's central point on this motion is that this letter of November 3, 2000 presumably never reached MFA since in July 2000, several months before the letter of November 3, 2000 was sent, MFA had changed address and telephone numbers, including its postal address.
[6] However, on December 13, 2000, MFA's marketing director, Mr. Viktor E. Sapp, sent an email to the solicitor who had sent the letter of November 3, 2000. This email of December 13, 2000 reproduces the email address appearing on the letter of November 3, 2000 and the file number appearing on that letter. Furthermore, this email of December 13, 2000 begins by telling the plaintiffs' solicitor that MFA has received its letter in relation to its case.
[7] The text of this email of December 13, 2000 reads as follows:
We received your letter in respond to above mention case.
Unfortunately we do not know anything about this case and we are not aware about any loss of cargo from our customer Finlandia.
We appreciate if you could send some paperwork as back-up and therefore give us the possibilities to go through our files.
Thanking you in advance we remain
best regard Viktor E.Sapp Dir. Marketing MFA Corp., USA
[8] According to MFA, since it had changed its contact information in July 2000, and the email of December 13 does not refer to any specific date when it refers to "your letter", and Mr. Sapp was seeking further information or documentation concerning the damaged cargo, it must necessarily be concluded that MFA had got wind of a possible claim by the plaintiffs otherwise than through the receipt of the complete mailing composed of the 12 pages of the letter of November 3, 2000.
[9] I am unable to follow MFA on this track.
[10] I am persuaded by a preponderance of proof that, notwithstanding the changes in MFA's contact information, the letter of November 3, 2000 reached MFA and that Mr. Sapp was replying to this specific letter through his email of the following December 13. The fact that he states that he needs further information is surprising in the circumstances and in my opinion does not deprive my latter conclusion of any weight.
[11] Furthermore, and this is decisive in what followed, Mr. Sapp in his email of December 13, 2000 does not inform the plaintiffs' counsel that MFA has a new address and new telephone numbers. In not doing so, MFA directly suggests to the plaintiffs that the mailing coordinates of November 3, 2000 are valid.
[12] It was to these mailing coordinates that the plaintiffs proceeded to serve their statement of claim against MFA, on February 22, 2001. So the plaintiffs cannot be criticized for the contact information they used, or the fact that this service was made one day later than the deadline of February 21, 2001 imposed by an order of this Court dated January 22, 2001. This delay of one day is independent of the intention of the plaintiffs and is attributable only to the slowness of the postal system in question. I do not accept in this case that the plaintiffs should, as of February 2001, have realized that their service exceeded the period imposed by one day.
[13] It is my understanding, rather, that the plaintiffs then thought their service of February 2001 was valid and, as one can imagine, they were expecting a reaction or defence from MFA.
[14] I do not think the plaintiffs can be criticized either in this case for the fact that they did not try to contact MFA immediately after the deadline for the filing of MFA's statement of defence had arrived.
[15] It was apparently in November 2001 that the plaintiffs contacted MFA in writing, still using the mailing coordinates used in the past, since on November 26, 2001, MFA's president informed the plaintiffs' counsel that, as they put it, they had never received service in February 2001 of the statement of claim. In that letter to the plaintiffs, MFA's president for the first time, I think, denounces the errors in the information used by the plaintiffs to contact MFA.
[16] On December 2, 2001, the plaintiffs' counsel sent MFA the statement of claim in this case, with all the relevant documentation.
[17] I think it is this date of December 2, 2001 that should be adopted for ordering that the period for service of the plaintiffs' statement of claim is extended to December 2, 2001 and for declaring that MFA was validly given such service as of this date of December 2, 2001.
[18] Inasmuch as the following four criteria must be considered in establishing the test in the circumstances, I think the plaintiffs have met them all. These four criteria, drawn from the judgment in Global Enterprises International Inc. v. Aquarius (The), [2001] F.C.J. No. 994, at pages 3 and 4, are:
1. A continuing intention to pursue his or her application;
2. That the application has some merits;
3. That no prejudice to the Respondent arises from the delay; and
4. A reasonable explanation for the delay exists.
[19] In regard to the criterion of prejudice, more specifically, I think the plaintiffs, during their cross-examination of MFA's president, sufficiently attacked the apparently prejudicial items - the departure of an MFA employee and the situation of Norasia, now in bankruptcy, to the point of depriving them of any significance.
[20] Indeed, concerning the departure of an MFA employee, this departure dates back to May 2000 in any case. Accordingly, even in February 2001, this factor would have been present. Furthermore, this employee was said to be working with the MFA management and it is far from certain that her testimony would have been central. As to the situation of Norasia, we do not know when it went bankrupt or what relevant documentation that was not already available it might have possessed. In this regard, it should be recalled that the letter of November 3, 2000 contained some definite information with its attached exhibits.
[21] This motion by the plaintiffs will therefore be allowed, costs to follow, and it will be ordered that the deadline for service of the plaintiff's statement of claim is extended to December 2, 2001 and that MFA, as of that date of December 2, 2001, was validly served.
[22] The parties will be further required, within twenty (20) days of this order, to submit to the Court - jointly inasmuch as this can be done - a schedule that will cover the measures to be taken subsequently in this proceeding.
Richard Morneau
Prothonotary
Montréal, Quebec
August 11, 2003
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-2214-00
STYLE:
FINLANDIA CHEESE INC.
and
McCADUM CHEESE COMPANY
and
VALIO LTD JUUSTOVARASTO D.B.A. "VALIO FINNISH CO-OP"
and
THE PARTIES AND ALL OTHERS INTERESTED
IN THE CARGO STOWED IN CONTAINER No. CRLU518051-8 LADEN
ABOARD THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
Plaintiffs
and
SHORELINE SHIPPING S.A.
and
SACKS MARITIME S.A.
and
TARGET MARINE S.A.
and
NORASIA CONTAINER LINES LTD.
and
MAIRITIME FREIGHT AMERICA CORP.
and
THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
AND THE OWNERS AND ALL OTHERS INTERESTED
IN THE VESSEL "ANTIGONI (EX-NORASIA TORONTO)"
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 20, 2003
REASONS FOR ORDER OF MR. RICHARD MORNEAU, PROTHONOTARY
DATED: August 11, 2003
APPEARANCES:
J. Kenrick Sproule FOR THE PLAINTIFFS
Shelley Chapelski FOR THE DEFENDANT
MAIRITIME FREIGHT AMERICA CORP.
SOLICITORS OF RECORD:
The Law Offices of J. Kenrick Sproule FOR THE PLAINTIFFS
Montréal, Quebec
Bromley Chapelski FOR THE DEFENDANT
Vancouver, B.C. MAIRITIME FREIGHT AMERICA CORP.
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