Elders Grain Co. v. Ralph Misener ( The )
T-1836-90
Joyal J.
17/1/97
10 pp.
Appeal from prothonotary's order refusing to recognize sufficiency of service of re-amended statement of claim in rem, and refusing to issue warrant for arrest of vessel-Action for damages by fire to cargo-Copy of re-amended statement of claim for action in rem delivered to master of vessel on board vessel-Federal Court Rules, R. 1002(5) requiring service in rem be effected by posting pleading on mast of vessel or some other conspicuous location-Prothonotary holding service of re-amended statement of claim upon vessel neither proper nor valid, but that insufficiency of service not fatal to plaintiffs' claim and granted extension of time for service-Appeal allowed-As questions addressed by prothonotary vital to final issue of case in that limitation for service of re-amended statement of claim now elapsed, decision reviewable-Judge to exercise discretion de novo-Although formalistic requirements of in rem service by posting on mast of ship continuing to apply in England, English case law, precedents not binding-Reference to RR. 2(2), 6, 302, 310(1), 420, 424, 1619(1)-Mona Lisa Inc. v. The Carole Reith, [1979] 2 F.C. 633 (T.D.) distinguished as service herein more respectful of spirit, purpose of R. 1002(5)-Also, statement of defence, counterclaim acknowledging ownership of ship, admitting plaintiffs' claim in respect of cargo carried on her-Service effected in in rem action proper, prothonotary directed to issue warrant for arrest of ship-Federal Court Rules, C.R.C., c. 663, RR. 2(2), 6 (as enacted by SOR/90-846, s. 2), 302, 310(1), 420, 424, 1002(5), 1619(1) (as enacted by SOR/92-43, s. 19).