Alaska (State) v. Pacific Shore (The), docket T-1552-97

Date: 19970103

Docket: T-1552-97

     ADMIRALTY ACTION IN REM AGAINST THE SHIPS

     "PACIFIC SHORE", "IVORY C", "D"YERMAK"ER" ,

     "MIHAMAWEST", "QUEPASA", "SILVER SEEKER",

     "WANDERER"Y", "US-QUABACH", "GRIZZLY KING",

     "SILVER TIDE", "GALLEY BAY", "MISS INA",

     "VICTO", "DIANNA TINA", "SEA WIFE",

     "WINDSWEPT", "WISHING WELL", AND OTHERS

BETWEEN:

     STATE OF ALASKA, ALASKA MARINE HIGHWAY SYSTEM,

     AND ALASKA DEPARTMENT OF TRANSPORTATION

     AND PUBLIC FACILITIES

     Plaintiffs

     - and -

     JOHN A. DOE, JOHN B. DOE, JANE A. DOE, JANE B. DOE,

     AND OTHER PERSONS UNKNOWN, AND

     VARIOUS SHIPS OBSTRUCTING NAVIGATION

     IN PRINCE RUPERT, BRITISH COLUMBIA INCLUDING

     "PACIFIC SHORE", "IVORY C", "D"YERMAK"ER" ,

     "MIHAMAWEST", "QUEPASA", "SILVER SEEKER",

     "WANDERER"Y", "US-QUABACH", "GRIZZLY KING",

     "SILVER TIDE", "GALLEY BAY", "MISS INA",

     "VICTOR", "DIANNA TINA", "SEA WIFE",

     "WINDSWEPT", "WISHING WELL", AND OTHERS

     INCLUDING THOSE SHIPS AND THEIR OWNERS

     AND MANAGING OWNERS LISTED ON

     SCHEDULE "A" HERETO

     Defendants

     REASONS FOR ORDER

NADON J.

[1]      The applicants, owners and operators of fishing vessels in the Province of British Columbia, seek an order of this Court declaring that the action commenced by the plaintiffs against the schedule "A" defendants, other than those defendant ships named in the statement of claim filed on July 20, 1997, was not properly commenced. Further, the applicants seek an order setting aside the service of the amended statement of claim against the schedule "A" defendants.

[2]      A brief summary of the facts is necessary to understand the orders sought by the applicants.

[3]      On July 20, 1997, the plaintiffs commenced an action in rem in this Court. The plaintiffs named as defendants 17 ships including "and others". The plaintiffs also named as defendants the following: John A. Doe, John B. Doe, Jane A. Doe, Jane B. Doe and other persons unknown.

[4]      The plaintiffs" action stems from events which began on July 19, 1997 when a number of ships were allegedly placed in such a way so as to prevent the departure of the plaintiffs" ship, the MALASPINA , a passenger and motor vehicle ferry, from the ferry terminal at Prince Rupert, British Columbia. For the present purposes, the following allegations of the statement of claim are relevant:

4.      The individual Defendants, or some of them, are the owners or operators of various ships, many of which are Canadian commercial fish boats, including but not limited to the Defendant ships.

5.      On Saturday, July 19, 1997, the Defendants, wrongfully and with intent to cause damage to the Plaintiffs, while the "Malaspina" was at the ferry terminal at Prince Rupert, B.C. positioned various ships including the Defendant ships, and other objects directly in the path, or near, of the "Malaspina", thereby preventing the "Malaspina" from leaving the terminal, for Alaska. The Defendants, or some of them, also prevented the embarkation and disembarkation of passengers and vehicles from the "Malaspina" and other of the Plaintiffs" ships, thereby causing further impediment to the ordinary operations of the "Malaspina" and other ships in the Plaintiffs" ferry system. These actions of the Defendants are collectively referred to herein as the "blockade".

6.      At the time the blockade began, there were approximately 328 passengers and 71 vehicles on board the "Malaspina". The blockade forced the cancellation of that voyage, and other voyages of the "Malaspina", and caused major disruption of the Plaintiffs" ferry system.

7.      Despite numerous requests by the Plaintiffs, the Defendants have refused to end their blockade.

8.      The Defendants, by the blockade, have created a public nuisance and also trespassed against the Plaintiffs.

9.      By placing ships or other objects in positions that prevent the departure of the "Malaspina" from its terminal, the Defendants are interfering with the public right of navigation, and causing particular harm to the Plaintiffs.

10.      The blockade was the result of a conspiracy by the Defendants to interfere with the contractual rights of the Plaintiffs.

[5]      As a result of these allegations, the plaintiffs claim damages against the defendants, including punitive damages.

[6]      On July 21, 22, 24 and 25, 1997, the plaintiffs served, inter alia, upon 8 of the named defendant ships, upon a further 48 ships, upon a number of named persons and upon a number of "unidentified persons", a certified copy of the statement of claim.

[7]      On August 21, 1997, the plaintiffs filed an amended statement of claim, pursuant to rule 421(1) of the Federal Court Rules. The plaintiffs amended the style of cause of their statement of claim by adding, after the words "and others", the following:

INCLUDING THOSE SHIPS AND THEIR OWNERS AND MANAGING OWNERS LISTED ON SCHEDULE "A" HERETO.

[8]      Further, the plaintiffs amended paragraph 4 of their statement of claim which now reads as follows:

4.      The individual Defendants, or some of them, are the owners or operators of various ships, many of which are Canadian commercial fish boats, including but no limited to the Defendant ships. Attached as Schedule "A" is a list showing the following information about the defendant ships, and the defendant shipowners or operators, as now known to the Plaintiffs:

i)      Ship Name;

ii)      Canadian Ship"s Registry Official Number or Vessel Licence Number;

iii)      Canadian Fishing Vessel Licence Number; and

iv)      Name and address of Defendant Shipowner or Managing Owner.

[9]      Schedule "A", referred to in the amended statement of claim, both in the style of cause and in paragraph 4, is a thirteen page document which lists, if my count is correct, the name of 94 ships, including the name of the 17 ships named as defendants in the statement of claim, and their owners/managing owners.

[10]      The plaintiffs" position is that every ship and owner listed in schedule "A" is a defendant to their action. The plaintiffs contend that these ships, save those ships already named as defendants in the statement of claim, and owners are not new parties to their action but the "Doe" defendants which they have now been able to identify. Consequently, the plaintiffs argue that they could amend their style of cause, pursuant to Rule 421(1), without leave of this Court.

[11]      The applicants, the owners/managing owners of the ships which appear in schedule "A" to the amended statement of claim, take the position that the plaintiffs could not proceed by way of rule 421(1) since the effect of the amendment is to add new defendants to the action which the plaintiffs commenced on July 20, 1997. The applicants submit that leave of this Court was required since the addition of parties to an action is subject to Rule 1716. Rules 421(1) and 1716 provide as follows:

Rule 421. (1) A party may, without leave, amend any of his pleadings at any time before any other party has pleaded thereto.

Rule 1716. (1) No action shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any action determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the action.

(2) At any stage of an action the Court may, on such terms as it thinks just and either of its own motion or on application,

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party, or

(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the action may be effectually and completely determined and adjudicated upon, to be added as a party,

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as the Court may find to be adequate in the circumstances.

(3) Where an order is made under this Rule, the statement of claim or declaration must be amended accordingly and must be indorsed with

(a) a reference to the order in pursuance of which the amendment is made, and

(b) the date on which the amendment is made,

and the amendment must be made within such period as may be specified in the order or, if no period is so specified, within 15 days after the making of the order.

(4) Where an order is made under this Rule, it shall contain directions as to consequential pleadings or other proceedings; and any interested party may apply for supplementary directions.

[12]      The issue which I have to decide is whether the schedule "A" defendants, save the 17 ships named as defendants in the statement of claim, are new parties to this action or if they are simply, as the plaintiffs contend, the identification of the "Doe" defendants. If the plaintiffs are right that their amendment was made simply to correct a misnomer and not for the addition or substitution of new or different parties, then the applications must necessarily fail.

[13]      Both the applicants and the plaintiffs referred me to the decision of the British Columbia Court of Appeal in Jackson v. Bubela, [1972] 5 W.W.R. 80. The facts of that case are fairly simple and they are accurately summarized by Mr. Justice Bull at 81:

On 18th August 1970 the appellant was injured in an automobile accident which occurred at the intersection of 59th Avenue and Oak Street, in Vancouver, when allegedly a motor vehicle carrying 1970 licence No. CED 696 owned by the female respondent, Lorraine Bubela, and negligently driven by a male person, came into collision with a vehicle in which she was travelling. In early August 1971 the appellant instructed her solicitors to commence action for damages for her injuries and loss suffered, and advised them that the owner of the allegedly negligently driven vehicle was the female respondent and that further details could be procured from her insurance company, which had a complete file concerning the accident. She did not know the name of the male driver of the "offending" vehicle. The solicitors then made every effort to procure the name of the driver, including full inquiries of the police and the insurers of the offending vehicle. The driver had made no report to the police as he should have done, and the insurers of the vehicle driven by him advised that they did not have his name, although confirming that the female respondent was its owner. Being so unable to ascertain the name of the driver, the appellant"s solicitors were compelled (because of the imminent expiration of the one-year limitation period provided by The Motor-vehicle Act, R.S.B.C. 1960, c. 253, s. 79 [am. 1963, c. 27, s. 16; 1966, c. 30, s. 20; 1968, c. 32, s. 12; 1969 c. 20, s. 14]) to issue the writ on 17th August 1971, in which the female respondent was named as a defendant along with the driver of her car at the place and time in question named as "John Doe". The endorsement on the writ made it quite clear that "John Doe" was sued as the driver of the offending vehicle who allegedly so negligently drove it as to cause the appellant"s injuries in the clearly described and defined accident, and that that name was not his real name, which was known only to the other defendant, the female respondent. A short time after the issue of the writ it was ascertained that the driver was a brother of the female respondent and that his real name was "Wallace Bubela": hence the application to amend the writ of summons to change the name of the defendant "John Doe" in the style of cause and in the endorsement to "Wallace Bubela".

[14]      On these facts, the Court of Appeal concluded that the plaintiff"s application had been made to correct a misnomer of an existing party to the action. At page 82, Mr. Justice Bull states:

However, I have reached the conclusion that the Local Judge was wrong in holding that a substitution for, or addition of, a party was involved and erred in not holding that the application was merely to correct a misnomer of an existing party to the action. The words "John Doe" to my mind are not restricted in connotation to a "fictitious" person or one not in existence. Traditionally the words were used in that limited sense in early ejectment suits, but for generations they have come to be accepted, used and understood, both in legal and common parlance, as indicating a real person existing and identifiable but whose name is not known or available to the person referring to him. That is the situation here. The appellant was not purporting to sue a fiction to maintain or acquire some property right as was done in ancient times. On the contrary, she was suing a living man whom she alleged was at a particular defined time and place operating a described motor vehicle in such a negligent manner as to cause her injuries then and there. Her litigating finger was pointed at that driver and no one else, but she did not know his name. For the purposes of suit (and it was necessary to act quickly because of the imminent expiry of the limitation period) she gave that identifiable and identified man a name, using one that would clearly connotate to all that it did not purport to be his real name. And, further, in the endorsement it was clearly stated that the real name of the defendant driver was not "John Doe" but was unknown except to the other defendant, the female respondent. [EMPHASIS ADDED]

[15]      Later on, in his reasons, Mr. Justice Bull adopts the test set out by Devlin L.J. in Davies v. Ellsby Bros. Ltd. to determine whether a plaintiff seeks to correct a misnomer or to add a new party. At page 676, Devlin L.J. states¹:

The argument of counsel for the plaintiff, on the other hand, is that this is a misnomer because there can be no doubt that the person whom the plaintiff intended to sue was his employer, and his employer at the time of the accident was the company. I think that that is going to the opposite extreme on the other side and I could not assent to that. It is a general principle of English law, not merely applicable to cases of misnomer, that the intention which the framer of the document has in mind when he brings it into existence is not material. In that we differ from many continental systems. In English law as a general principle the question is not what the writer of the document intended or meant, but what a reasonable man reading the document would understand it to mean; and that is the test which ought to be applied as a general rule in cases of misnomer -- which may embrace a number of other situations apart from misnomer on a writ, for example mistake as to identity in the making of a contract. The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong", then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer." [EMPHASIS ADDED]

[16]      The plaintiffs submit that the application of Lord Devlin"s test to the facts of the present case leads to the conclusion that the schedule "A" defendants, upon a fair reading of the statement of claim, would necessarily say to themselves that "of course, it must be me, but they have got my name wrong". The applicants, obviously, argue that the only possible answer is that the schedule "A" defendants cannot tell from the statement of claim whether they are the "Doe" defendants. The applicants further submit that the plaintiffs" "litigating finger" was not pointed at them.

[17]      In order to apply Lord Devlin"s test, it is necessary to refer to the allegations in the statement of claim, and more particularly, to paragraph 5 thereof. In that paragraph, the plaintiffs allege that the defendants, with intent to cause damage to them, placed a number of ships, and other objects, directly in the path, or near thereto, of their ship, the MALASPINA . The plaintiffs further allege that the defendants prevented the embarkation and disembarkation of passengers and vehicles from their ship. The plaintiffs refer to these actions of the defendants as the "blockade".

[18]      I note from the above allegations that the statement of claim is not directed at all ships present in Prince Rupert Harbour on July 19, 1997 but only at those ships "positioned ... directly in the path or near, of the "Malaspina", ...". I also note that the statement of claim is directed at those defendants who "wrongfully and with intent to cause damage to the plaintiffs, ..." "positioned various ships ... directly in the path, or near, of the "Malaspina", ...". That is the extent of the allegations made by the plaintiffs. Only those defendants, and hence their ships, who are the subject of these allegations would conclude that the plaintiffs" litigating finger was pointed at them.

[19]      I also wish to note that there is no evidence whatsoever before me with respect to the whereabouts, on July 19, 1997 and following days, of the schedule "A" ships. With respect to the owners/managing owners of these ships, I also have no evidence. In other words, there is nothing before me to demonstrate that the schedule "A" defendant owners/managing owners positioned their ships, at the relevant time, "directly in the path, or near, of the "Malaspina"".

[20]      The reason why I have pointed out that I have no evidence regarding the schedule "A" ships and owners/managing owners is that in Jackson v. Bubela , there was evidence before the Local Judge and thus before the Court of Appeal to the effect that the driver of the "offending vehicle", who had not been identified in the writ, was the brother of the owner of the vehicle. Thus, there was no doubt that that driver, upon reading the allegations against John Doe, could only conclude that the plaintiff was suing him. In her action, the plaintiff had sued, in the words of Bull J.A. at page 82, "a living man whom she alleged was at a particular defined time and space operating a described motor vehicle ...".

[21]      The time and place are not, in my view, so defined in the statement of claim herein. The place is defined as being "directly in the path, or near, of the "Malaspina",". That is the specific place. In my view, in order for the plaintiffs to succeed on this point, they had to show that the schedule "A" defendant ships were in that place on July 19, 1997. As no one has adduced evidence, save in the case of one applicant, I am not in a position to answer the questions posed by Lord Devlin in his test. There is obviously no such issue regarding the 17 ships named in the statement of claim. They were named as defendants from the outset and they shall so remain. However, with respect to those ships and owners/managing owners who were not named as defendants on July 20, 1997, I can only conclude that they would not be certain that the plaintiffs" litigating finger was pointed at them.

[22]      A case in point is that of the ships "Mitchell Bay" and "Island Provider", owned by Mitchell Bay Fishing Ltd. These ships and their corporate owner all appear as defendants in schedule "A".

[23]      An affidavit was filed by Roy Botkin, a director of Mitchell Bay Fishing Ltd. In his affidavit, Mr. Botkin states that at the relevant time both ships were under charter to Seafood Products Inc. and that, as a result, directions were being given by Seafood Products to Mitchell Bay Fishing with respect to "where and when the two vessels were to pack fish".

[24]      At paragraph 10 of his affidavit, Mr. Botkin states that on July 19, 1997, the ships were "nowhere near the normal course taken by the Malaspina in leaving Prince Rupert Harbour". I need not go further. That is sufficient for me to decide that these defendants would not conclude, after reading the statement of claim, that the plaintiffs" litigating finger was directed at them.

[25]      In paragraph 25 of their written brief, the plaintiffs make the following submission:

In the present case, an owner of operator of a vessel that participated in the blockade of the M.V. "Malaspina" in Prince Rupert harbour on July 19-22, 1997 would have no difficulty recognizing himself or herself from the Statement of Claim as a person the Plaintiffs intended to name as a defendant in the action. The Statement of Claim describes the activities of certain persons and ships at "a particular defined time and place." As with the negligent driver in Jackson v. Bubela who caused a specific accident, the "litigating finger" is pointed at those owners, operators, and vessels who participated in that act of civil disobedience, and no others.

[26]      In making this submission, the plaintiffs appear to assume that each and every schedule "A" defendants "participated in the blockade of the M.V. "Malaspina" in Prince Rupert Harbour on July 19-22, 1997 ...". I have no evidence to substantiate that allegation. There is no evidence before me to show that the schedule "A" defendant ships were, between July 19 and 22, 1997, "directly in the path, or near, of the "Malaspina", ...".

[27]      In Jackson v. Bubela, the plaintiff applied to the Court for leave to amend the style of cause of her action to correct the name "John Doe" to read "Wallace Bubela". Although it is not clear from the report of the case, I have to assume that the plaintiff offered evidence to the Court that Wallace Bubela was indeed the driver referred to in her action. In the present instance, the plaintiffs have offered no evidence that the schedule "A" defendant ships were "directly in the path, or near, of the "Malaspina" ..." on July 19, 1997.

[28]      At this stage of the proceedings it is obviously not my role to assess the evidence so as to decide whether the statement of claim is well-founded or not. However, it is necessary, to a certain extent, to examine some of the evidence so as to answer the questions which must be answered in order to determine whether the plaintiffs are attempting to add defendants or to simply correct a misnomer. In my view, the plaintiffs had the burden of adducing some evidence in order to show that the schedule "A"defendants are the "Doe" defendants named in the statement of claim. In my view, the plaintiffs have not succeeded in making that proof.

Thus, on the evidence, I cannot conclude that the plaintiffs, by their amendments, are attempting to correct a misnomer and, therefore, as a result, the applications shall be allowed. Consequently, I find that the action instituted by the plaintiffs against the schedule "A" defendants, other than the 17 named defendant ships, is improperly commenced. As a result, service of the statement of claim or amended statement of claim on these defendants is invalid.

     "Marc Nadon"

     Judge

OTTAWA, ONTARIO

November 3, 1997

__________________

     ¹ [1960] 3 All. E.R. 672.