Date: 20010905
Docket: T-793-00
Neutral citation: 2001 FCT 994
Toronto, Ontario, Wednesday the 5th day of September, 2001
PRESENT: Peter A.K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
McCAIN PRODUCE INC. and
R.L. SEALE & CO. LTD.
Plaintiffs
-and-
VISSER POTATO LTD.,
NOVA LIGURIA SHIPPING CO. LTD.,
SEATRADE REEFER CHARTERING N.V.,
DAMMERS SHIPMANAGEMENT N.V., and
THE VESSEL "M.V. NOVA LIGURIA",
Her Owners and Charterers
Defendants
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] Before me is an ex parte motion by the Plaintiffs for judgment in default of defence against the Defendants Nova Liguria Shipping Co. Ltd., Dammers Shipmanagement N.V. and The Vessell "M.V. NOVA LIGURIA", Her Owners and Charterers; that is to say, some but not all of the Defendants. These Defendants were served and the certificate of the Government of the Netherlands was offered in proof. That certificate does not show what documents were served or where.
[2] I am prepared for the purposes of this order to assume that the served document was a statement of claim and a summary of it in the Dutch language. It is much as service was affected by the good offices of a Ministry of the Government of the Netherlands, I assume also that the ship was not served in Canada. I can find no authority for the service of a ship outside Canada nor for the service of a ship other than in an action in rem. The statement of claim is not styled in rem.
[3] Because there has not been proper service on the ship the motion must be dismissed. The Plaintiffs have filed in their motion record copies of the defence of two of the Defendants who have defended. From them it is apparent that the claim arises from loss to a cargo and it is alleged that the bill of lading contained a clause which in effect required disputes to be arbitrated in Rotterdam pursuant to Dutch law. This point should be covered in any future motion as should the desirability of a judgment with a reference.
ORDER
1. Motion dismissed.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 5, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-793-00
STYLE OF CAUSE: McCAIN PRODUCE INC. and R.L. SEALE & CO. LTD.
Plaintiffs
-and-
VISSER POTATO LTD.,
NOVA LIGURIA SHIPPING CO. LTD.,
SEATRADE REEFER CHARTERING N.V.,
DAMMERS SHIPMANAGEMENT N.V., and
THE VESSEL "M.V. NOVA LIGURIA",
Her Owners and Charterers
Defendants
CONSIDERED AT TORONTO, PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES 1998.
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: WEDNESDAY, SEPTEMBER 5, 2001
WRITTEN SUBMISSIONS BY: Mr. John C.F. Hunt
For the Plaintiffs
Mr. Nigel H. Frawley
For the Defendants
SOLICITORS OF RECORD: BLACK, SUTHERLAND, CRABBE LLP
Barristers & Solicitors
401 Bay Street
Suite 2700, P.O. Box 101
Toronto, Ontario
M5H 2Y4
For the Plaintiffs
BORDEN LADNER GERVAIS LLP
Barristers & Solicitors
Scotia Plaza, 40 King Street West
Toronto, Ontario
M5H 3Y4
For the Defendants
FEDERAL COURT OF CANADA
Date: 20010905
Docket: T-793-00
Between:
McCAIN PRODUCE INC. and
R.L. SEALE & CO. LTD.
Plaintiffs
-and-
VISSER POTATO LTD.,
NOVA LIGURIA SHIPPING CO. LTD.,
SEATRADE REEFER CHARTERING N.V., DAMMERS SHIPMANAGEMENT N.V., and THE VESSEL "M.V. NOVA LIGURIA",
Her Owners and Charterers
Defendants
REASONS FOR ORDER
AND ORDER
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