Alpha Trading Monaco Sam v. Ship Sarah Desgagnes et al., 2010 FC 695

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: June 21, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 695;(2010), 392 F.T.R. 1 (FC)

Alpha Trading v. Ship Sarah Desgagnes (2010), 392 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JN.020

Alpha Trading Monaco Sam (plaintiff) v. The Ship "Sarah Desgagnes" and the owners and all other interested in the Ship "Sarah Desgagnes" and Transport Desgagnes Inc. and Maritima Fluviale Di Navigazione S.p.A. (defendants) and Petro-Nav Inc., as disponent owner and Transport Desgagnes Inc., as registered owner, of the defendant ship "Sarah Desgagnes" (plaintiffs by counterclaim) and Alpha Trading Monaco Sam (defendant by counterclaim)

(T-2075-09; 2010 FC 695)

Indexed As: Alpha Trading Monaco Sam v. Ship Sarah Desgagnes et al.

Federal Court

Harrington, J.

June 24, 2010.

Summary:

The plaintiff, a bunker fuel supplier, arrested a ship in Canada to secure a claim for unpaid invoices. The plaintiff agreed to release the ship on an undertaking by her owners to post bail respecting the 11 invoices. The plaintiff later amended the statement of claim in rem to limit it to one invoice. The plaintiff commenced an action in personam against the time charterer in Italy respecting the same 10 invoices and an action in personam in Canada against the ship's owner respecting those 10 invoices. It then had the ship re-arrested in Belgium to secure a claim against her time charterer for payment of the 10 invoices (which could not be done under Canadian law). The ship owners and others sought an anti-suit injunction.

The Federal Court granted the injunction, restraining the plaintiff from continuing proceedings in Belgium.

Conflict of Laws - Topic 9303

Practice - Injunctions - To enjoin foreign proceedings - The plaintiff, a bunker fuel supplier, arrested a ship in Canada to secure a claim for unpaid invoices - The plaintiff agreed to release the ship on an undertaking by her owners to post bail respecting the 11 invoices - The plaintiff later amended the statement of claim in rem to limit it to one invoice - The plaintiff commenced an action in personam against the time charterer in Italy respecting the same 10 invoices and an action in personam in Canada against the ship's owner respecting those 10 invoices - It then had the ship re-arrested in Belgium to secure a claim against her time charterer for payment of the 10 invoices (which could not be done under Canadian law) - The ship owners and others sought an anti-suit injunction - The Federal Court granted the injunction, restraining the plaintiff from continuing proceedings in Belgium - The Belgium action was oppressive and vexatious - The plaintiff invoked the Canadian court's jurisdiction and attorned to it by serving a statement of claim in rem on the ship and arresting her with respect to all 11 invoices - It agreed to release her against a promise by the owners to provide security for all 11 invoices - By accepting security respecting the 11 invoices, the plaintiff made its election, and the court would hold it to it.

Cases Noticed:

World Fuel Services Corp. v. Ship Nordems et al. (2010), 366 F.T.R. 118; 2010 FC 332, refd to. [para. 14].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 20].

Holt Cargo Systems Inc. v. ABC Containerline N.V. (Bankrupt) et al., [2001] 3 S.C.R. 907; 280 N.R. 1; 2001 SCC 90, refd to. [para. 20].

Gentra Canada Investments Inc. v. Lehndorff United Properties (Canada) et al., [1996] 1 W.W.R. 154; 173 A.R. 161; 31 Alta. L.R.(3d) 322 (Q.B.), refd to. [para. 23].

OT Africa Line Ltd. v. Magic Sportswear Corp. et al., [2004] EWHC 2441 (Comm.), refd to. [para. 23].

OT Africa Line Ltd. v. Magic Sportswear Corp. et al., [2005] EWCA Civ. 710 (C.A.), refd to. [para. 23].

Magic Sportswear Corp. et al. v. OT Africa Line Ltd. et al. (2006), 352 N.R. 331; 2006 FCA 284, refd to. [para. 23].

ABN AMRO Bank Canada v. Collins Barrow et al. (1997), 161 N.S.R.(2d) 48; 477 A.P.R. 48 (C.A.), refd to. [para. 24].

ABN AMRO Bank Canada v. Wackett - see ABN AMRO Bank Canada v. Collins Barrow et al.

Ship Atlantic Star, Re, [1974] A.C. 436; [1973] 2 All E.R. 175, refd to. [para. 28].

Antares Shipping Corp. v. Ship Capricorn et al., [1977] 2 S.C.R. 422; 7 N.R. 518, refd to. [para. 28].

Ship Atlantic Star, Re; Atlantic Star (Owners) v. Bona Spes (Owners), [1972] 2 Lloyd's Rep. 446; [1973] Q.B. 364; revd. [1974] A.C. 436 (H.L.), refd to. [para. 29].

Freighters (Steamship Agents) Co. v. Ship Number Four, [1983] 1 F.C. 852; 48 N.R. 321 (F.C.A.), refd to. [para. 30].

Counsel:

Marc de Man, for the plaintiff/defendant by counterclaim;

Louis Buteau, for the defendants/plaintiffs by counterclaim, with the exception of Maritima Fluviale Di Navigazione SpA.

Solicitors of Record:

De Man, Pilotte, Montreal, Quebec, for the plaintiff/defendant by counterclaim;

Robinson Sheppard Shapiro L.L.P., Montreal, Quebec, for the defendants/plaintiffs by counterclaim with the exception of Maritima Fluviale Di Navigazione SpA.

This motion was heard at Montreal, Quebec, on June 21, 2010, before Harrington, J., of the Federal Court, who delivered the following judgment on June 24, 2010, in Ottawa, Ontario.