Ssangyong Australia Pty Ltd. v. Looiersgracht ( The )
T-2166-94
Hargrave P.
19/10/94
10 pp.
Motion by corporate defendants to set aside arrest of vessel Looiersgracht or to set security for release of vessel arrested -- Prima facie claim against the Looiersgracht for damage to cargo -- Whether security to be posted should include security for alleged damage to cargo carried on five other vessels-Whether ownership of vessels sufficient to bring all or any of them within Federal Court Act, s. 43(8) -- Lloyd's Register of Shipping showing defendant Spliethoff's as manager of each vessel -- Spliethoff's having minority interest in each defendant vessels-Defendants refuting sistership allegation -- Plaintiffs urging beneficial ownership approach -- Arrest, sistership provisions to be liberally interpreted -- That Spliethoff's would receive remuneration for managing vessels not equal to ownership interest required by s. 43(8) -- Onus of establishing beneficial ownership not met by plaintiffs -- 9 Wigmore, Evidence 2486 (Chadbourn rev. 1981) dealing with burden of proof, in context of risk of non-persuasion, where facts peculiarly within party's knowledge-Defendants dealing with risk of non-persuasion by filing material to explain ownership of vessels -- Spliethoff's ownership not enough to come within s. 43(8) -- Canadian sistership provisions requiring common complete ownership of both vessels by same owner(s)-Plaintiffs entitled only to security arising out of cargo alleged to be damaged while being carried by Looiersgracht -- Federal Court Act, R.S.C., 1985, c. F-7, s. 43(8) (as am. by S.C. 1990, c. 8, s. 12).