Napa v. Abta Shipping Co., docket T-387-98

     Date: 20000117

     Docket: T-387-98

MONTRÉAL, QUEBEC, THE 17th DAY OF JANUARY 2000

PRESENT:      RICHARD MORNEAU, PROTHONOTARY

ACTION IN PERSONAM AGAINST ABTA SHIPPING COMPANY LIMITED AND TRADE FORTUNE INC. S.A.

Between:

     REMARLO EVANGELISTA NAPA

     CYRUS J. FERRAREN

     PETER JULIAN EYMARD D. SORIANA

     ALMA MOTILLA NOCES

     MILAGROS JAVINES SANORJO

     EDWINA VIRAY ORBE

     ANNA LIZA AGUDOS CALINGA

     and

     CONCHITA B. ORTEGA

     Plaintiffs

     AND

     ABTA SHIPPING COMPANY LIMITED

     and

     TRADE FORTUNE INC. S.A.

     Defendants

     REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]      Considering the defendants" motion in this file and in file T-1344-98 under

rule 250 of the Federal Court Rules (1998) for the plaintiffs who survived the FLARE wreckage to undergo a medical examination by a medical practitioner appointed by the Court;

[2]      Considering that one order should dispose of both motions;

[3]      Considering that the parties have conflicting views not so much as to which medical practitioner should be appointed but rather as to where the respective examinations should be conducted: either in Canada or abroad (in Yugoslavia in file T-1344-98 and in the Philippines in this file);

[4]      Considering that for the purpose of this determination, the Court could not hold against the plaintiffs the fact they brought their action in Canada;

[5]      Considering that more specifically, despite the opposing arguments put forward by the defendants, the Court is of the view that it must give precedence to the opinion of Dr. Buenaventura, who examined the plaintiffs and believes that the plaintiffs Napa and Ferraren are in no condition at all to travel to Canada to undergo their medical examination;

[6]      Considering that in file T-1344-98, the Court is also of the view that the opinion of Dr. Knezevic, who examined the plaintiff and concluded that he is medically unfit to travel to Canada, should take precedence over the medical evidence submitted by the defendants;

[7]      Considering, despite the evidence submitted by the defendants in file T-1344-98, that it does not appear to the Court to be inordinately unreasonable or dangerous to require a Canadian medical practitioner to go to Yugoslavia;

[8]      Considering what can be taken from Brocklehurst v. Assuncao [Ont.] (1977), 3 C.P.C. 178, at page 181, the Court is of the view that the plaintiffs" health should take precedence over the additional cost to the defendants of medical examinations abroad;

[9]      IT IS HEREBY ORDERED:

1.      That under rule 250(1), the Court appoints Dr. Brian Hoffman (or any other medical practitioner the parties agree on) to conduct a medical examination of the plaintiff Petar Markovic (file T-1344-98) in Bar, Yugoslavia, and plaintiffs Remarlo Evangelista Napa, Peter Julian Eymard Soriano and Cyrus J. Ferraren (in this file) in Quezon, Philippines.

2.      That the plaintiffs in both files will cover their own travel expenses and the expenses of any person they have present under rule 250(2). All other expenses related to the examinations will be covered by the defendants. All these expenses will be subject to taxation at a later date.

3.      Within 20 days of this order, the parties will submit a draft order covering other procedures that need to be covered for the smooth conduct of the examinations. In particular, the draft order will set a schedule for the examinations.

4.      Costs of the motions in the cause.

5. These reasons and order will be placed in file T-1344-98.

Richard Morneau

     Prothonotary

Certified true translation

Peter Douglas

Federal Court of Canada

Trial Division

Date: 20000117

Docket: T-387-98

                         Between:

                         REMARLO EVANGELISTA NAPA

                         CYRUS J. FERRAREN

                         PETER JULIAN EYMARD D. SORIANA

                         ALMA MOTILLA NOCES

                         MILAGROS JAVINES SANORJO

                         EDWINA VIRAY ORBE

                         ANNA LIZA AGUDOS CALINGA

                         and

                         CONCHITA B. ORTEGA

Plaintiffs

                         AND

                         ABTA SHIPPING COMPANY LIMITED

                         and

                         TRADE FORTUNE INC. S.A.

Defendants

REASONS FOR ORDER

AND ORDER

FEDERAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:

STYLE OF CAUSE:

T-387-98

REMARLO EVANGELISTA NAPA

CYRUS J. FERRAREN

PETER JULIAN EYMARD D. SORIANA

ALMA MOTILLA NOCES

MILAGROS JAVINES SANORJO

EDWINA VIRAY ORBE

ANNA LIZA AGUDOS CALINGA and

CONCHITA B. ORTEGA

     Plaintiffs

AND

ABTA SHIPPING COMPANY LIMITED and

TRADE FORTUNE INC. S.A.

     Defendants

PLACE OF HEARING:Montréal, Quebec

DATE OF HEARING:January 12, 2000

REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS FOR ORDER:January 17, 2000

APPEARANCES:

Laurent Fortier

for the plaintiffs

Danièle Dion David Colford

for the defendants

SOLICITORS OF RECORD:

Stikeman, Elliott Montréal, Quebec

for the plaintiffs

Brisset Bishop Montréal, Quebec

for the defendants