Watt & Scott Inc. v. Chantry Shipping S.A. et al., (1987) 11 F.T.R. 242 (TD)

• Judge: Joyal, J.
• Court: Federal Court (Canada)
• Case Date: January 26, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 11 F.T.R. 242 (TD)

Watt & Scott v. Chantry Shipping S.A. (1987), 11 F.T.R. 242 (TD)

MLB headnote and full text

Watt & Scott Inc. v. Chantry Shipping S.A. and the Ship "Antje Schulte", its manager, Atlantic Marine Limited, and any other persons interested in said Ship and Burlington Northern Railroad Company and Atlantic and Gulf Stevedores of Alabama and Container Services International Inc.

(No. T-1634-86)

Indexed As: Watt & Scott Inc. v. Chantry Shipping S.A. et al.

Federal Court of Canada

Trial Division

Joyal, J.

June 4, 1987.

Summary:

The plaintiff (Watt & Scott Inc.) ordered brazilian nuts from a company in Brazil. The nuts were shipped on board the ship "Antje Schulte" owned or managed by the defendants Chantry Shipping S.A. and Atlantic Marine Ltd. The nuts were off loaded in Alabama (USA) and shipped by rail via the Burlington Northern Railroad Co. to Winnipeg, Manitoba (Canada). The nuts arrived damaged. The plaintiff commenced an action for damages against the ship, its owners, a railroad company, a stevedore company and a company which hauled the nuts from the docks to the railroad. The plaintiff obtained leave to serve all defendants except Burlington Northern Railroad Co. ex juris. Burlington Northern Railroad Co. applied for leave to file a conditional appearance to challenge the court's jurisdiction. The ship owners applied to have the orders of service ex juris against them rescinded.

The Federal Court of Canada, Trial Division, dismissed Burlington Northern Railroad Co.'s application, holding that it had jurisdiction over the matter. The court also dismissed the ship owner's application holding that they were properly served ex juris.

Conflict of Laws - Topic 1001

Service out of jurisdiction (ex juris) - General principles - The plaintiff ordered nuts from a company in Brazil - The nuts were shipped by sea to Alabama (USA) and then by rail to Winnipeg, Manitoba (Canada) - The nuts arrived damaged - The plaintiff wished to sue the foreign owners of the ship and obtained an order permitting service ex juris - The Federal Court of Canada, Trial Division, affirmed the order where the plaintiff had an arguable case against the owners and the Federal Court was the proper forum conveniens - See paragraphs 46 to 56.

Courts - Topic 4020

Federal Court of Canada - Jurisdiction - Trial Division - Claims made under statute of Canada - Railway Act - The plaintiff ordered nuts from a company in Brazil - The nuts were shipped by sea to Alabama, (USA) and then by rail to Winnipeg, Manitoba (Canada), via the Burlington Northern Railroad Co. - The nuts arrived damaged - The plaintiff sued the railroad company, among others, for damages in the Federal Court of Canada, Trial Division - The railroad company challenged the court's jurisdiction - The court discussed generally its jurisdiction under ss. 22 and 23 of the Federal Court Act - The court concluded that it had jurisdiction by virtue of s. 23 of the Federal Court Act and s. 262 of the Railway Act - See paragraphs 10 to 45.

Courts - Topic 4045

Federal Court of Canada - Jurisdiction - Trial Division - Exclusions - Jurisdiction specially assigned - Federal Court Act, s. 23 - The Federal Court of Canada, Trial Division, discussed the phrase "Except to the extent that jurisdiction has been otherwise specially assigned" as the phrase appeared in s. 23 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 - See paragraphs 28 to 45.

Courts - Topic 4045

Federal Court of Canada - Jurisdiction - Trial Division - Exclusions - Jurisdiction specially assigned - Federal Court Act, s. 23 - [See Courts - Topic 4020 above].

Practice - Topic 2558

Service - Out of jurisdiction (ex juris) - Consideration by court of forum conveniens - [See Conflict of Laws - Topic 1001 above].

Practice - Topic 2562

Service out of jurisdiction (ex juris) - Requirement of good cause of action against named defendant - [See Conflict of Laws - Topic 1001 above].

Words and Phrases

Except to the extent that jurisdiction has been otherwise specially assigned - The Federal Court of Canada, Trial Division, discussed this phrase as it appeared in s. 23 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 - See paragraphs 28 to 45.

Cases Noticed:

Anglophoto Ltd. v. The Ship "Ikaros", [1974] F.C. 327; 2 N.R. 509, appld. [para. 20].

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, consd. [para. 22].

Robert Simpson Montreal Ltd. v. Hamburg-Amerika Linie Norddeutscher, [1973] F.C. 1356, consd. [para. 25].

Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575, refd to. [para. 30].

Kiist and Robertson v. Canadian Pacific Railway Company, Canadian National Railway Company and The Canadian Wheat Board (1981), 37 N.R. 91, consd. [para. 35].

Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., [1959] S.C.R. 271, consd. [para. 41].

Price & Pierce International Inc. and Sohn v. Finland Steamship Co. Ltd., Ship "Antares" and Chase International (Holdings) Inc. (1983), 46 N.R. 372, refd to. [para. 51].

Cliffe v. Hull and Netherlands SS. Co. (1921), 6 L1.L.R. 136, refd to. [para. 52].

Statutes Noticed:

Constitution Act, 1867, sect. 91(1) [para. 25]; sect. 92(10), sect. 101 [para. 30].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 22(1) [para. 17]; sect. 22(2)(f) [para. 18]; sect. 23 [para. 28 et seq.].

Railway Act, R.S.C. 1970, c. R-2, generally [para. 30]; sect. 262 [para. 31 et seq.].

Railway Act of British Columbia, R.S.B.C. 1948, c. 285, sect. 203(1)(c) [para. 42].

Authors and Works Noticed:

Carver's Carriage By Sea (13th Ed. 1982), vol. 1, p. 527 [para. 19].

Carver's Carriage By Sea (12th Ed. 1971), vol. 2, p. 172 [para. 52].

Counsel:

Rui M. Fernandes, for the plaintiff;

C. Turiansky, for Burlington Northern Railroad;

David Colford, for Chantry Shipping S.A.

Solicitors of Record:

Beard, Winter, Gordon, Toronto, Ontario, for the plaintiff;

Kierans & Guay, Montreal, Quebec, for Burlington Northern Railroad;

Brisset, Bishop, Davidson, Montreal, Quebec, for Chantry Shipping S.A.

These applications were heard on January 26, 1987, in Montreal, Quebec, before Joyal, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on June 4, 1987: