Porto Seguro Companhia De Seguros Gerais v. Belcan S.A. et al., (2001) 213 F.T.R. 116 (TD)

• Judge: Lemieux, J.
• Court: Federal Court (Canada)
• Case Date: April 24, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 213 F.T.R. 116 (TD)

Porto Seguro Companhia v. Belcan (2001), 213 F.T.R. 116 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. NO.029

Porto Seguro Companhia De Seguros Gerais (plaintiff) v. Belcan S.A., Fednav Limited, Ubem S.A., the Owners and All Others Interested in the Vessel "Federal Danube" and the Vessel "Federal Danube" (defendants)

(T-2057-85; 2001 FCT 1181)

Indexed As: Porto Seguro Companhia De Seguros Gerais v. Belcan S.A. et al.

Federal Court of Canada

Trial Division

Lemieux, J.

October 31, 2001.

Summary:

The Ship Beograd exited a lock on the St. Lawrence Seaway system and collided with the Ship Federal Danube, which was weighing anchor in a designated anchorage area. Ship Beograd's cargo was damaged. The cargo insurer, a Brazilian company, indemnified the cargo owner for the loss and, in its own name, sued the defendant owner of the Ship Federal Danube et al.

The Federal Court of Canada, Trial Division, in a decision reported 82 F.T.R. 127, dismissed the action, holding that the Ship Beograd was solely at fault for the collision. The cargo insurer appealed, arguing, inter alia, that the trial judge erred in not allowing the insurer's experts to testify because there were court appointed assessors.

The Federal Court of Appeal, MacGuigan, J.A., dissenting, in a decision reported 195 N.R. 241, dismissed the appeal. The cargo insurer appealed again.

The Supreme Court of Canada, in a decision reported 220 N.R. 321, allowed the appeal and ordered a new trial. The court did not deal with the issue of costs at trial.

The Federal Court of Canada, Trial Division, in a decision reported 200 F.T.R. 44, dismissed the cargo insurer's action. The court held that although the cargo insurer had standing to pursue the action in its own name, the Ship Beograd (i.e., the vessel insured by the cargo insurer) was solely liable for the collision. The successful defendants sought costs of the aborted first trial.

The Federal Court of Canada, Trial Division, allowed the application.

Practice - Topic 7103.2

Costs - Party and party costs - Special orders - Costs on first trial where new trial ordered - The plaintiff's action was dismissed - The plaintiff appealed all the way to the Supreme Court of Canada, which ordered a new trial on the basis that the trial judge erred in excluding expert evidence - The plaintiff's action was dismissed after the new trial - The successful defendants sought costs of the aborted first trial - The plaintiff argued that new trial was precipitated because of the defendants' bad tactical decision to seek a ruling from the first trial judge to exclude expert evidence - The Federal Court of Canada, Trial Division, allowed the defendants' application - As a general rule, the costs of an aborted trial followed the results of the new trial unless special reasons dictated otherwise - The defendants' alleged conduct did not fit within the limited circumstances which would disentitle them from their costs even on a cost thrown away basis.

Cases Noticed:

Reid v. Kraus et al. (2000), 203 Sask.R. 98; 240 W.A.C. 98 (C.A.), refd to. [para. 12].

Egmont Towing & Sorting Ltd. v. Ship Telendos (1982), 43 N.R. 147 (F.C.A.), refd to. [para. 14].

McGivney v. Rustico Summer Haven (1997) Ltd.,(1989), 81 Nfld. & P.E.I.R. 293; 255 A.P.R. 293 (P.E.I.C.A.), refd to. [para. 18].

Nordstrand et al. v. Olsen et al. (1968), 65 W.W.R.(N.S.) 9; 68 D.L.R.(2d) 645 (B.C.C.A.), refd to. [para. 19].

Rose v. Sargent, [1949] 3 D.L.R. 688 (Alta. C.A.), refd to. [para. 19].

Robinson v. Point Grey, [1927] 2 D.L.R. 471 (B.C.C.A.), refd to. [para. 23].

Authors and Works Noticed:

Orkin's Law of Costs (2nd Ed. 1997), para. 226 [para. 18].

Counsel:

George Pollack, for the plaintiff;

Richard Gaudreau, for the defendants.

Solicitors of Record:

Sproule & Pollack, Montreal, Quebec, for the plaintiff;

Langlois Gaudreau, Quebec, Quebec, for the defendants.

This application was heard at Montreal, Quebec, on April 24, 2001, before Lemieux, J., of the Federal Court of Canada, Trial Division, who delivered the following reasons for costs order on October 31, 2001.