Banco do Brasil S.A. v. Ship Alexandros G. Tsavliris et al., (1992) 145 N.R. 140 (FCA)

• Judge: Isaac, C.J., Heald and Marceau, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 06, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 145 N.R. 140 (FCA)

Banco do Brasil v. Alexandros Tsavliris (1992), 145 N.R. 140 (FCA)

MLB headnote and full text

Banco Do Brasil S.A. (appellant/defendant) v. Pan American Steamship Lines, Inc. and Europe-Overseas Steamship Lines N.V. (respondents/plaintiffs)

(A-845-90)

Indexed As: Banco do Brasil S.A. v. Ship Alexandros G. Tsavliris et al.

Federal Court of Appeal

Isaac, C.J., Heald and Marceau, JJ.A.

August 14, 1992.

Summary:

Pan American chartered the Greek regis­tered ship, the Alexandros G. Tsavliris, to carry steel from Europe to Canada. Banco do Brasil held a mortgage on the ship which was in default. During the course of the voyage the bank from its solicitors' offices in London, England, threatened to arrest the ship in Panama causing delay for Pan Am, the charterers. When the ship finally arrived in Canada two and a half months late, it was arrested and sold. Pan Am claimed damages from the bank, alleging that the bank wrongfully induced it to breach its charter­party and bills of lading contracts by inter­fering in the voyage and claimed damages for the delay. Two main issues arose as to (1) what law governed the claim, and (2) was the bank liable in accordance with that law?

In a decision reported [1990] 3 F.C. 260; 35 F.T.R. 122, the Federal Court of Canada, Trial Division, allowed Pan Am's, the char­terer's, claim. The court held that there was a tort (i.e. inducement of breach of contract) committed in England that was actionable under Canadian and English law and the bank was liable for the loss caused to the charterers flowing from the interruption of performance of charterparty and bills of lading. The bank appealed.

The Federal Court of Appeal allowed the appeal and dismissed the action. There was no tort actionable under Canadian law and therefore no actionable wrong in Canada for which the bank could be held liable.

Conflict of Laws - Topic 2484

Admiralty - Choice of law - Torts - Inducement of breach of contract - A Greek ship was chartered by Pan Am to carry steel from Europe to Canada - A Brazilian bank held a mortgage on the ship which was in default - Through its solici­tors in England, the bank threatened to arrest the ship en route causing the voyage to be delayed two and one-half months and resulting in breaches of Pan Am's charterparty and bills of lading contracts - The Federal Court of Appeal concluded that the trial judge erred in law in con­cluding that the bank committed a tort (inducement of breach of contract) in England that was actionable under Cana­dian and English law - The applicable maritime common law, the tort of intimi­dation, was not established.

Shipping and Navigation - Topic 523

Ships, ownership and control - Rights, duties and liabilities of mortgagees - Exercise of rights during charterparty - [See Conflict of Laws - Topic 2484 ].

Shipping and Navigation - Topic 523

Ships, ownership and control - Rights, duties and liabilities of mortgagees - Exercise of rights during charterparty - The Federal Court of Appeal discussed the common law liability of a ship's mortgagee for interference in the performance of a contract made by a ship's owner for the employment of that ship - See paragraphs 48 to 76.

Torts - Topic 5286

Interference with economic relations - Intimidation and duress - Acts not consti­tuting intimidation - [See Conflict of Laws - Topic 2484 ].

Cases Noticed:

Myrto, The, Re, [1977] 2 L.L.R. 243 (Q.B.D., Adm. Ct.), dist. [para. 44].

De Mattos v. Gibson (1859), 4 De G. & J. 276, dist. [para. 50].

Collins v. Lamport (1964), 11 L.T. 497, dist. [para. 50].

Innisfallen, The, [1866] L.R. 1 A. & E. 72, dist. [para. 50].

Johnson v. Royal Mail Steam Packet Co., [1867] L.R. 3 C.P. 38, dist. [para. 50].

Keith v. Burrows (1877), L.R. 2 App. Cas. 636, dist. [para. 50].

Cory Bros. v. Stewart, [1886] 2 T.L.R. 508, dist. [para. 50].

Blanche, The (1888), 58 L.T. 592, dist. [para. 50].

Fanchon, The (1880), 5 P.D. 173, dist. [para. 50].

Celtic King, The, [1894] P. 175, dist. [para. 50].

Heather Bell, The, [1901] P. 272, dist. [para. 50].

Law Guarantee & Trust Society v. Russian Bank for Foreign Trade, [1905] 1 K.B. 815, dist. [para. 50].

Manor, The, [1907] P. 339, dist. [para. 50].

Lord Strathcona, The, [1925] P. 143, dist. [para. 50].

Rookes v. Barnard, [1964] A.C. 1129, refd to. [para. 58].

Morgan v. Fry, [1968] 2 Q.B. 710 (C.A.), consd. [para. 58].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Ter­minal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241; 28 D.L.R.(4th) 641, appld. [para. 60].

Roman Corp. Ltd. et al. v. Hudson's Bay Oil and Gas Co. Ltd. et al., [1973] S.C.R. 820, consd. [para. 62].

Central Canada Potash Co. Ltd. and Canada (Attorney General) v. Saskatchewan (1979), 1 S.C.R. 42; 23 N.R. 481; 88 D.L.R.(3d) 609, consd. [para. 64].

Grieg v. Insole, [1978] 3 All E.R. 449, refd to. [para. 76].

Posluns v. Toronto Stock Exchange (1965), 46 D.L.R.(2d) 210, refd to. [para. 76].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 2 [para. 60].

Authors and Works Noticed:

Castel, J.G., Canadian Conflict of Laws (2nd Ed. 1985) [para. 42].

Clerk and Lindsell on Torts (16th Ed. 1989), p. 828 [para. 57].

Fridman on Torts (1990), pp. 552, 553 [para. 68].

Counsel:

David Roberts, Q.C., and R. Shore, for the appellant;

Nils E. Daugulis and Daniel R. Bennett, for the respondents.

Solicitors of Record:

Campney & Murphy, Vancouver, B.C., for the appellant;

Bull, Housser & Tupper, Vancouver, B.C., for the respondents.

This appeal was heard on April 6, 1992, at Vancouver, British Columbia, before Isaac, C.J., Heald and Marceau, JJ.A., of the Fed­eral Court of Appeal. Isaac, C.J., delivered the following judgment of the court on August 14, 1992: