Alcan Aluminium Ltd. et al. v. Unican International S.A. et al., (1996) 120 F.T.R. 44 (TD)

• Judge: Nadon, J.
• Court: Federal Court (Canada)
• Case Date: September 25, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 120 F.T.R. 44 (TD)

Alcan Aluminium Ltd. v. Unican Intl. (1996), 120 F.T.R. 44 (TD)

MLB headnote and full text

Alcan Aluminium Limited and Alcan Smelters and Chemicals Limited (plaintiffs) v. Unican International S.A. and The Ship M.V. "Carrybulk" and her owners and C.T.O. International Limited (defendants)

(T-1217-90)

Indexed As: Alcan Aluminium Ltd. et al. v. Unican International S.A. et al.

Federal Court of Canada

Trial Division

Nadon, J.

September 25, 1996.

Summary:

C.T.O. time chartered the Ship "Carrybulk" from Unican (the shipowner). Alcan entered into a booking note contract with C.T.O. for carriage of aluminium ingots overseas from two ports in Quebec onboard the Ship "Carrybulk". The Ship "Carrybulk" did not present itself at the second Quebec port. Alcan arranged to ship its remaining cargo on another vessel. Alcan sued the shipowner and C.T.O. for damages for breach of contract and C.T.O. counterclaimed against Alcan.

The Federal Court of Canada, Trial Division, in a decision reported 113 F.T.R. 81, dismissed Alcan's action against the shipowner because the shipowner was not party to the booking note contract, nor contractually bound to a contract of carriage by bills of lading. The court allowed Alcan's action against C.T.O., holding that C.T.O. breached the booking note contract. Damages were assessed accordingly. The court dismissed C.T.O.'s counterclaim. The court invited submissions on costs and the applicable interest rates.

The Federal Court of Canada, Trial Division, in the decision reported below, dealt with these issues accordingly.

Interest - Topic 3506

Statutory interest - On judgments - Rate of interest - C.T.O. time chartered a vessel from Unican - Alcan entered into a booking note contract with C.T.O. for carriage of aluminium ingots overseas from two ports in Quebec - The vessel did not present itself at the second port and Alcan shipped its ingots on another vessel - Alcan sued C.T.O. for damages for breach of contract - The trial judge allowed the action and assessed damages - Alcan claimed post-judgment interest and sought to amend its pleadings to include a claim for an additional indemnity under art. 1619 of the Quebec Civil Code - The Federal Court of Canada, Trial Division, allowed the amendment and the claim for an additional indemnity - As a result, Alcan was entitled to interest of 5% on its judgment plus an indemnity of 5% over and above the legal interest rate - See paragraphs 10 to 18.

Interest - Topic 5009

Interest as damages (prejudgment interest) - Prejudgment interest - Calculation of (incl. rate) - C.T.O. time chartered a vessel from Unican - Alcan entered into a booking note contract with C.T.O. for carriage of aluminium ingots overseas from two ports in Quebec - The vessel did not present itself at the second port and Alcan shipped its ingots on another vessel - Alcan sued C.T.O. for damages for breach of contract - The trial judge allowed the action and assessed damages - Alcan sought prejudgment interest at commercial rates - The Federal Court of Canada, Trial Division, held that Alcan did not provide proof of the commercial rates and the court would therefore only allow prejudgment interest at the legal interest rate of 5% - See paragraphs 3 to 9.

Interest - Topic 5108

Interest as damages (prejudgment interest) - Breach of contract - Contract for carriage of goods - [See Interest - Topic 5009 ].

Interest - Topic 5486

Interest as damages (prejudgment interest) - Maritime matters - [See Interest - Topic 5009 ].

Practice - Topic 7020

Costs - Party and party costs - Entitlement - Successful party - General principles - [See first Practice - Topic 7155 ].

Practice - Topic 7155

Costs - Party and party costs - Liability for - Bullock order or Sanderson order where success divided - Alcan sued a shipowner (Unican) and a charterer (C.T.O.) for damages for breach of contract - The trial judge dismissed Alcan's action against Unican but allowed Alcan's action against C.T.O. - Alcan claimed, inter alia, that Unican should not recover costs from Alcan respecting Alcan's unsuccessful claim against Unican and, alternatively, if Unican was allowed its costs, a Sanderson Order should issue directing Unican to recover its costs directly from the defendant C.T.O. - The Federal Court of Canada, Trial Division, held that it would not depart from the general rule that a successful party is entitled to its costs; therefore, Unican was entitled to costs from Alcan - Further, a Sanderson order was not appropriate - See paragraphs 19 to 22.

Practice - Topic 7155

Costs - Party and party costs - Liability for - Bullock order or Sanderson order where success divided - Alcan sued a shipowner (Unican) and the charterer (C.T.O.) for damages for breach of contract - The trial judge dismissed Alcan's action against Unican but allowed Alcan's action against C.T.O. - Alcan claimed full costs from C.T.O. - C.T.O. argued that its offers to settle should be considered - The Federal Court of Canada, Trial Division, rejected C.T.O.'s argument where C.T.O. made no valid settlement offers - Therefore, Alcan was entitled to its costs against the defendant C.T.O. - The court held further that it was appropriate to issue a Bullock order requiring the defendant C.T.O. to reimburse Alcan for the costs it would have to pay the successful defendant, Unican - See paragraphs 23 to 34.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - Alcan sued a shipowner (Unican) and a charterer (C.T.O.) for damages for breach of contract - The trial judge dismissed Alcan's action against Unican but allowed Alcan's action against C.T.O. - Alcan claimed full costs from C.T.O. - C.T.O. argued that because of its offers to settle, Alcan should pay its costs from the date of the offers - The Federal Court of Canada, Trial Division, rejected C.T.O.'s argument where C.T.O. made no valid settlement offers within the meaning of the Federal Court Rules - Therefore Alcan was entitled to its costs against the defendant C.T.O. - See paragraphs 23 to 34.

Quebec Obligations - Topic 5352

Breach of obligations - Damages - Interest and indemnity under art. 1619 C.C.Q. - When available - [See Interest - Topic 3506 ].

Cases Noticed:

St. Lawrence Construction Ltd. v. Federal Commerce and Navigation Co. et al. (1985), 56 N.R. 174 (F.C.A.), refd to. [para. 6].

Shibamoto & Co. et al. v. Western Fish Producers Inc. (Bankrupt) et al. (1992), 48 F.T.R. 176 (T.D.), refd to. [para. 7].

Iron Mac Towing (1974) Ltd. et al. v. Ships North Arm Highlander et al. (1979), 28 N.R. 348 (F.C.A.), refd to. [para. 8].

Canadian Newspaper Co. v. Snyder, [1995] R.D.J. 392 (Que. C.A.), refd to. [para. 16].

Statutes Noticed:

Civil Code of Quebec, art. 1619 [para. 18].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 36(1), sect. 36(7) [para. 6, footnote 1]; sect. 37(1) [para. 10, footnote 7].

Federal Court Rules, rule 344(1), rule 334(2), rule 334(3)(g), rule 344.1 [para. 24, footnote 13]; rule 420 [para. 17, footnote 11].

Ministère du revenu, Loi sur le, L.R.Q. 1977, c. M-31, sect. 28 [para. 12].

Authors and Works Noticed:

Quebec, Commentaires du ministre de la Justice, Code civil du Québec - Un mouvement de société, t. 1, p. 1004 [para. 13].

Counsel:

Trevor Bishop, for the plaintiffs;

Jeremy Bolger, for the defendant, C.T.O. International S.A.;

Andrew Ness, for the defendant, Unican International S.A.

Solicitors of Record:

Brisset Bishop, Montreal, Quebec, for the plaintiffs;

McMaster Meighen, Montreal, Quebec, for the defendant, C.T.O. International Ltd.;

Sproule, Castonguay, Pollack, Montreal, Quebec, for the defendant, Unican International S.A.

This matter was heard in Montreal, Quebec, on September 4 and 5, 1996, before Nadon, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on September 25, 1996.