Simpson (Robert) Montreal Ltd. v. Hamburg-Amerika Linie Norddeutscher Lloyd Ernst and Montreal Shipping Co., (1973) 1 N.R. 158 (FCA)

• Judge: Jackett, C.J., Thurlow, J. and Hyde, D.J.
• Court: Federal Court (Canada)
• Case Date: December 17, 1973
• Jurisdiction: Canada (Federal)
• Citations: (1973), 1 N.R. 158 (FCA)

Simpson Montreal v. Hamburg-Amerika (1973), 1 N.R. 158 (FCA)

MLB headnote and full text

Robert Simpson Montreal Ltd. v. Hamburg-Amerika Linie Norddeutscher Lloyd Ernst and Montreal Shipping Co. Ltd.

Indexed As: Simpson (Robert) Montreal Ltd. v. Hamburg-Amerika Linie Norddeutscher Lloyd Ernst and Montreal Shipping Co.

Federal Court of Canada

Appeal Division

Jackett, C.J., Thurlow, J. and Hyde, D.J.

December 17, 1973.

Summary:

This case arose out of a claim for damages for damage to an ocean cargo against the defendant ocean carrier. The defendant ocean carrier joined as a third party the terminal operator in Montreal and claimed indemnity against the terminal operator. An interlocutory motion was made by the third parties to the Trial Division of the Federal Court of Canada for dismissal of the third party notice. The interlocutory application was granted and the third party notice was struck out on the grounds that the Federal Court of Canada had no jurisdiction with respect to the claim of indemnity and because the claim for indemnity was wider in scope than the claim made by the plaintiff in its statement of claim.

On appeal to the Federal Court of Appeal the appeal was allowed and the interlocutory judgment of the Trial Division was set aside. The Federal Court of Appeal held that the third party notice was valid. The claim for indemnity related to the activities of the terminal operator with respect to the cargo. The Federal Court of Appeal stated that the activities of the terminal operator were so connected with the carriage of goods at sea that they fell within the meaning of the words "navigation and shipping" assigned to the Federal Government by s. 91(10) of the British North America Act. In addition the Federal Court of Appeal stated that the claim for indemnity against the third party by the defendant was not limited by the scope of the plaintiff's claim in the plaintiff's statement of claim - see paragraphs 8 and 26.

Practice - Topic 1101

Third party procedure - Jurisdiction of the Federal Court of Canada respecting the content of a claim in a third party notice - The plaintiff claimed damages against the defendant ocean carrier for failure to deliver cargo in good order - The defendant ocean carrier joined a terminal operator as third party and claimed indemnity against the terminal operator - The Federal Court of Appeal held that the activities of the terminal operator were so connected with the carriage of goods by sea that they fell within "navigation and shipping" assigned to the Federal Government by s. 91(10) of the British North America Act.

Courts - Topic 4050

Federal Court of Appeal - Jurisdiction - The Federal Court of Appeal stated that the jurisdiction conferred on the court by the Federal Court Act was not intended to be a mere restatement of the preexistent jurisdiction of the Exchequer Court of Canada - See paragraph 19.

Practice - Topic 1059

Third party procedure - Limitations imposed by the pleadings on a claim against third party - The plaintiff claimed damages against the defendant ocean carrier for failure to deliver cargo in good order - The defendant ocean carrier joined a terminal operator as third party and claimed indemnity against the terminal operator - The Federal Court of Appeal held that the third party notice was valid - The Federal Court of Appeal stated that the scope of the plaintiff's claim against the defendant did not set the limits for a claim for indemnity against a third party - See paragraphs 8 and 26.

Cases Noticed:

Re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529, folld. [para. 15].

Bank of England v. Vagliano Brothers, [1891] A.C. 107, folld. [para. 19].

Consolidated Distilleries Ltd. v. Consolidated Exporters Corp. Ltd., [1930] S.C.R. 531, folld. [para. 12].

Consolidated Distilleries Ltd. v. The King, [1933] A.C. 508, folld. [para. 12].

Statutes Noticed:

Federal Court Act, S.C. 1970-71, c. 1, sect. 2 [paras. 9, 18]; sect. 21(1) [paras. 9, 18]; sect. 42 [para. 9].

British North America Act, 1867, sect. 91(10) [para. 12]; sect. 101 [para. 12].

Counsel:

Edourd Baudry, for Hamburg-Amerika Linie Norddeutscher, Lloyd Ernst Russ;

David Marler, for Montreal Shipping Company;

Vinvnet Prager, for The Robert Simpson Montreal Ltd.