Krupp Nirosta Export Gmbh v. Cast Bear (The), docket T-1685-99

Date: 20001218

Docket: T-1685-99

MONTREAL, QUEBEC, THIS 18^th DAY OF DECEMBER 2000

PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY

     ADMIRALTY ACTION IN REM AND IN PERSONAM

Between:

     KRUPP NIROSTA EXPORT GMBH,

     KRUPP HOESCH STEEL PRODUCTS, INC.,

     THEIS PRECISION STEEL CORP.

     Plaintiffs

     AND

     CP CONTAINERS (BERMUDA) LIMITED,

CAST LINE LIMITED,

CAST TERMINAL INC.,

JAYA-TDS SHIPPING LTD.,

THE VESSEL "CAST BEAR",

THE OWNERS AND ALL THOSE INTERESTED

IN THE VESSEL "CAST BEAR"

     Defendants

And Between:

     CP CONTAINERS (BERMUDA) LIMITED,

     CAST LINE LIMITED

     Plaintiffs by Counterclaim

     AND

     KRUPP NIROSTA EXPORT GMBH,

     KRUPP HOESCH STEEL PRODUCTS, INC.,

     THEIS PRECISION STEEL CORP.

     Defendants by Counterclaim

And Between:

     CP CONTAINERS (BERMUDA) LIMITED,

     CAST LINE LIMITED

     Plaintiffs in Third Party Claim

     AND

     SEA PARK N.V.

     Third Party

     REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY:

[1]          This is a motion for a stay of the Canadian proceedings by the Plaintiffs in the Third Party Claim (CP Containers (Bermuda) Limited and Cast Line Limited) against the Third Party Sea Park N.V., pursuant to subsection 50(1) of the Federal Court Act, R.S.C. 1985, chapter F-7, as amended, in favour of proceedings commenced in Belgium.

[2]          Although the subject matter of the claim herein appears to be similar to the one in the proceedings in Belgium, the proceedings in Belgium have been instituted by Cast Europe N.V. whereas the proceedings herein have been instituted by Cast Line Limited. Therefore, the claiming parties are not the same in the two sets of proceedings. This difference in my opinion is sufficient to consider that section 50 of the Federal Court Act is inapplicable here.

[3]          In addition, one must note that the applicant filed its Statement of Defence almost a year ago, and the fact that said defence refers to a jurisdiction clause contained in an agreement does not appear to be sufficient to sustain the argument that the applicant has not attorned to the jurisdiction of this Court.

[4]          Finally, as to the agreement referred to above, in addition to the attornment issue, Cast Line Limited is not a party to it.

[5]          Therefore, this motion is denied with costs.

Richard Morneau

     Prothonotary

     FEDERAL COURT OF CANADA

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:      T-1685-99

STYLE OF CAUSE:

         ADMIRALTY ACTION IN REM AND IN PERSONAM

Between:

KRUPP NIROSTA EXPORT GMBH, KRUPP HOESCH STEEL PRODUCTS INC., THEIS PRECISION STEEL CORP.

     Plaintiffs

         AND

CP CONTAINERS (BERMUDA) LIMITED, CAST LINE LIMITED, CAST TERMINAL INC., JAYA-TDS SHIPPING LTD., THE VESSEL "CAST BEAR", THE OWNERS AND ALL THOSE INTERESTED IN THE VESSEL "CAST BEAR"

     Defendants

         And Between:

CP CONTAINERS (BERMUDA) LIMITED, CAST LINE LIMITED

     Plaintiffs by Counterclaim

         AND

KRUPP NIROSTA EXPORT GMBH, KRUPP HOESCH STEEL PRODUCTS, INC., THEIS PRECISION STEEL CORP.

     Defendants by Counterclaim

         And Between:

CP CONTAINERS (BERMUDA) LIMITED, CAST LINE LIMITED

     Plaintiffs in Third Party Claim

         AND

         SEA PARK N.V.

     Third Party

PLACE OF HEARING:Montreal, Quebec

DATE OF HEARING:December 11, 2000

REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF REASONS FOR ORDER:December 18, 2000

APPEARANCES:

Mr. Pierre G. Côté

for the Defendants

Mr. Simon Barker

for the Third Party

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SOLICITORS OF RECORD:

Sproule, Castonguay, Pollack Montreal, Quebec

for the Plaintiffs

Ogilvy Renault Montreal, Quebec

for the Defendants

Oland & Co. Vancouver, B.C.

for the Third Party