Telus Communications (Québec) Inc. v. LOK PREM (Ship), 2003 FC 1285

Date: 20031104

Docket: T-548-03

Citation: 2003 FC 1285

Montréal, Quebec, November 4, 2003

Present:           RICHARD MORNEAU, ESQ., PROTHONOTARY                                   

                                               Admiralty action in rem and in personam

BETWEEN:

                                       TELUS COMMUNICATIONS (QUÉBEC) INC.

                                                                                                                                                         Plaintiff/

                                                                                                                 Defendant to the Counterclaim

                                                                                 and

                                                  THE OWNERS AND ALL OTHERS

                                           INTERESTED IN THE SHIP "LOK PREM"

                                                       AND THE SHIP "LOK PREM"

                                                                                 and

                                    THE SHIPPING CORPORATION OF INDIA LTD.

                                                                                                                                                   Defendants/

                                                                                                                          Plaintiffs by Counterclaim

Motion on behalf of Plaintiff for an order that:

1.          Defendants/Plaintiffs in Counterclaim disclose all relevant documents that are in their possession, power or control;

2.          A duly authorized representative of the Defendants/Plaintiffs in Counterclaim execute an Affidavit of Documents and that Defendants/Plaintiffs in Counterclaim provide a duly executed Certificate of Solicitor and that same be provided to Plaintiff's counsel by no later than 30 days of the date of the Order sought hereby;

3.          Defendants/Plaintiffs in Counterclaim be ordered to pay costs in the lump sum amount of $1,500.00 payable forthwith and in any event.

                                               REASONS FOR ORDER AND ORDER

[1]                 This motion by the Plaintiff/Defendant in Counterclaim (the Plaintiff) is granted, with costs under Column III of Tariff B, for the following reasons.

[2]                 The Plaintiff's action is, essentially, for damages incurred as a result of the severing of its fibre optic telecommunications cable which spans the St. Lawrence River near Les Escoumins caused by the in rem Defendant dragging her anchor and coming into contact with such cable.

[3]                 In their Amended Statement of Defence, the Defendants have in fact admitted the act causative of the damage sustained, to wit, that the in rem Defendant did in fact drag her anchor in the late afternoon of January 3, 2002, and that such anchor came into contact with the cable in question and thereby caused it to sever, necessitating repairs to the cable which are now being claimed against the Defendants.

[4]                 The Defendant has counterclaimed for the loss of its anchor and other damages.

[5]                 Considering that they admit the act causative of the damages sustained, the Defendants take the position that the shipboard documents are extraneous and irrelevant to the issues which separate the parties and, therefore, said documents need not be listed and produced by virtue of their Affidavit of Documents due for production under the Federal Court Rules, 1998.

[6]                 Although the Defendants' admission will help toward a dispositive resolution of this file, the said admission cannot relieve the Defendants of producing the documentation that pertains, for example, to the operation and management of the ship, the events giving rise to the damage to the cable, and the operating instructions given by the managers and owners of the vessel to the crew and officers.

[7]                 Paragraphs 13, 14, 23 and 24 of the Plaintiff's Statement of Claim raise allegations of fact which are not exhaustively admitted by the Defendants.

[8]                 For these reasons, the Defendants and Plaintiffs by Counterclaim shall prepare and serve their Affidavit of Documents by no later than thirty (30) days after the date of this Order. The said Affidavit of Documents shall list the shipboard documents.

Richard Morneau        

                                           Prothonotary

                  FEDERAL COURT

Date : 20031104

Docket : T-548-03

Admiralty action in rem and in personam

BETWEEN:

TELUS COMMUNICATIONS (QUÉBEC) INC.

                                  Plaintiff/

             Defendant to the Counterclaim

and

THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "LOK PREM"AND THE SHIP "LOK PREM"and THE SHIPPING CORPORATION OF INDIA LTD.

                                 Defendants/

                  Plaintiffs by Counterclaim

         REASONS FOR ORDER AND ORDER

                                  FEDERAL COURT

                    COUNSEL AND SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-548-03

Admiralty action in rem and in personam

Between:

TELUS COMMUNICATIONS (QUÉBEC) INC.

                                  Plaintiff/

             Defendant to the Counterclaim

and

THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "LOK PREM" AND THE SHIP "LOK PREM" and THE SHIPPING CORPORATION OF INDIA LTD.

                                 Defendants/

                 Plaintiffs by Counterclaim

PLACE OF HEARING:Montreal, Quebec

DATE OF HEARING:November 3, 2003

REASONS FOR ORDER OF RICHARD MORNEAU, ESQ., PROTHONOTARY

DATED:November 4, 2003

APPEARANCES:

SOLICITORS OF RECORD: