Anglophoto Limited (Plaintiff)
v.
The Ship Ferncliff, and Fearnley and Eger and
D/S I/S Garonne and Canadian Pacific Railway
Co. and Tacoma Stevedore & Terminal Co. and
Burlington Northern Inc. (Defendants)
Trial Division, Collier J.—Vancouver, B.C.,
July 19; Ottawa, October 11, 1972.
Maritime law—Jurisdiction—Practice—Goods shipped
from Japan to Montreal—Ship deviated to Tacoma by
strike—Goods stored by stevedore at Tacoma—Goods miss
ing on arrival at Montreal—Whether cause of action against
Tacoma stevedore justiciable by Canadian maritime law—
Service ex juris set aside—Federal Court Act, s. 22.
A bill of lading covering a shipment of goods from Japan
called for delivery by ship to Vancouver, B.C. and trans
shipment by rail to Montreal. Because of a longshoremen's
strike in British Columbia the vessel deviated to Tacoma,
Washington, where the goods were stored by the T compa
ny and later carried by rail across the border and thence by
rail to Montreal where some of the goods were missing.
Plaintiff brought action for damages against the ship, her
owners, the two railway companies and the T company, and
obtained leave to serve the statement of claim on the T
company ex juris.
Held, the order for service ex juris on the T company
must be set aside. The cause of action against that company
did not fall within the Court's Admiralty jurisdiction under
section 22(1) of the Federal Court Act. In particular the bill
of lading was not a through bill of lading within the meaning
of subsection (2)(f). Neither did the Court obtain jurisdic
tion against the T company under section 22(2) because the
Court had jurisdiction over the ship and her owners. Order
11, rule 1(g) of the British Columbia Supreme Court which
permitted service ex juris could not be made applicable by
analogy in order to give this Court a jurisdiction which it did
not obtain under section 22 of the Federal Court Act.
MOTION.
D. F. McEwen for plaintiff.
P. d'A. Collings for Tacoma Stevedore &
Terminal.
V. Hill, Q.C., for Ferncliff.
B. Hoeschen for C.P.R.
COLLIER J.—This is a motion by the defend
ant Tacoma Stevedore & Terminal Co., a Wash-
ington State corporation, (hereafter "Tacoma")
in effect objecting to the jurisdiction of this
Court in respect to the claim advanced by the
plaintiff against that particular defendant. I
shall later set out more precisely the order
sought and the grounds relied upon, but it is
first necessary to relate the relevant facts.
The plaintiff is a British Columbia company.
Pursuant to a bill of lading dated September 15,
1969, issued in Japan, 55 cartons of cameras
and advertising materials were shipped from
Nagoya, Japan, on board the vessel Ferncliff,
owned by the defendants Fearnley and Eger
and D/S I/S Garonne. The bill of lading called
for delivery by the vessel to Vancouver, British
Columbia, and transshipment by rail to Mont-
real, P.Q. Because of a longshoremen's strike in
British Columbia, the vessel deviated to
Tacoma, Washington. Arrangements were made
to discharge the vessel's cargo there and
Tacoma agreed to store the cargo pending fur
ther instructions. Ultimately, certain goods,
including the plaintiff's, were transported by the
defendant Burlington Northern Inc. to Sumas,
British Columbia, which is near the internatio
nal border, and from there the goods were taken
over by the defendant Canadian Pacific Railway
Company. When the freight car in which those
cartons had travelled from Tacoma to Montreal
eventually reached Montreal, it was found that
3 of the 55 cartons were empty.
The plaintiff brought action initially against
the Ferncliff, her owners, and the Canadian
Pacific Railway Company. Subsequently, an
order was obtained amending the statement of
claim by joining Tacoma and Burlington North
ern Inc. as defendants.
The plaintiff then obtained an ex parte order
from me giving it leave to serve a notice of the
statement of claim out of the jurisdiction
against Tacoma. Tacoma obtained leave to file a
conditional appearance for the purpose of
bringing on the present motion.
It is apparent from the statement of claim
that the plaintiff is uncertain as to which of the
defendants, or whether one or more of them,
are responsible for the loss.
The allegations in the statement of claim
against Tacoma are that it was negligent or in
breach of its duty as bailee for reward.
Counsel for Tacoma submits (1) that the
amended statement of claim discloses no cause
of action against Tacoma which would give
jurisdiction to this Court and (2) that service of
the notice of the statement of claim must be set
aside because the material in support of the
application to serve ex juris discloses no cause
of action within the jurisdiction of this Court.
The so-called Admiralty jurisdiction of the
Court is set out in section 22 of the Federal
Court Act, R.S. 1970, c. 10 (2nd Supp.).
Mr. Collings, for Tacoma, reviewed para
graphs (2)(e), (f), (h) and (i) 1 and contended the
facts and causes of action alleged against
Tacoma do not fall within any of those para
graphs. I agree with his contention.
In respect to paragraph (2)(f), counsel for
Tacoma and counsel for the vessel took the
position that the bill of lading here was not a
through bill of lading. On the other hand, coun
sel for the plaintiff relied on paragraph (2)(f) as
giving jurisdiction to this Court. In my opinion,
on the evidence and material before me, this is
not a through bill of lading as described in
Carver's Carriage by Sea, 12th ed., 1971, paras.
200-202.
Mr. McEwen, for the plaintiff, further relied
on section 22(1) in support of his contention
there is jurisdiction in this Court in respect to
the claim against Tacoma. Section 22(1) is as
follows:
22. (1) The Trial Division has concurrent original juris
diction as well between subject and subject as otherwise, in
all cases in which a claim for relief is made or a remedy is
sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within
the class of subject of navigation and shipping, except to
the extent that jurisdiction has been otherwise specially
assigned?
The argument as I understand it is this. If the
Court has jurisdiction over one defendant such
as the vessel and her owners in this case, then
by virtue of section 22(1) and Canadian mari
time law, the Court has jurisdiction to entertain
claims against what have been termed "ancil-
lary" defendants.
I cannot accede to this argument. To implead
a non-resident foreigner in this suit, I think
jurisdiction must be clearly shown. For exam
ple, if in this case before commencing suit, the
plaintiff knew from its investigations that the
loss probably occurred while the goods were in
possession of Tacoma and decided in the inter
ests of costs to sue Tacoma only, would this
Court have jurisdiction, the tort having
occurred or the bailment having been entered
into, in the United States? As I interpret section
22 of the Act, there would be no jurisdiction to
hear such a claim. In my opinion, the fact one
defendant is properly before the Court does not
in some manner give jurisdiction over a non
resident person who may have been in some
way involved in the loss of the goods.
Rule 307(1) of the Rules of this Court pro
vides that service of notice of a statement of
claim may be made on a defendant who is out
of the jurisdiction, and by that I think is meant
the geographical jurisdiction. Rule 307 has no
provisions, as do the rules of many of the
superior courts of the provinces, setting out the
types of actions or claims in which service ex
juris may be allowed. There is also no provision
in Rule 307, as again there is in the rules of
many of the provincial superior courts, allowing
service ex juris on a person out of the jurisdic
tion who is a necessary or proper party to an
action properly brought against some other
person served within the jurisdiction.
The rules in the Admiralty side of the Exche
quer Court of Canada did contain such a provi
sion in Rule 20(d). Those rules were repealed
effective June 1, 1971.
Mr. McEwen, for the plaintiff, relies on Rule
5 of the Rules of this Court, which is as
follows:
Rule 5. In any proceeding in the Court where any matter
arises not otherwise provided for by any provision in any
Act of the Parliament of Canada or by any general rule or
order of the Court (except this rule), the practice and
procedure shall be determined by the Court (either on a
preliminary motion for directions, or after the event if no
such motion has been made) for the particular matter by
analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar
proceedings in the courts of that province to which the
subject matter of the proceedings most particularly
relates,
whichever is, in the opinion of the Court, most appropriate
in the circumstances.
He points particularly to subparagraph (b) and
contends that in this case as the Federal Court
Rules make no provision for serving a party in
circumstances such as those covered by former
Admiralty Rule 20(d), then this Court should
look to the practice and procedure in the Prov
ince of British Columbia. Order 11, Rule 1(g) of
the Rules of the Supreme Court of British
Columbia is substantially the same as former
Admiralty Rule 20(d).
In my view, this is not a case where Rule 5
can be used. The Federal Court is a Court with
jurisdiction limited by statute, as compared to
provincial superior courts with general jurisdic
tion. As I have said earlier, one must look at the
provisions of the Act in order to ascertain
whether there is jurisdiction in respect to a
particular claim. To apply the British Columbia
rule in order to obtain jurisdiction over Tacoma
in this case would, to my mind, be extending
jurisdiction of this Court beyond that set out in
section 22.
For these reasons, the order for service ex
juris made against Tacoma is set aside; for
practical purposes the action as against Tacoma
is at an end and the action against it will be
dismissed. The costs of the various proceedings
to date in which Tacoma has been involved will
be recovered from the plaintiff by Tacoma. 3
1 22. (2) Without limiting the generality of subsection (1),
it is hereby declared for greater certainty that the Trial
Division has jurisdiction with respect to any claim or ques
tion arising out of one or more of the following:
(e) any claim for damage sustained by, or for loss of, a
ship including, without restricting the generality of the
foregoing, damage to or loss of the cargo or equipment of
or any property in or on or being loaded on or off a ship;
(D any claim arising out of an agreement relating to the
carriage of goods on a ship under a through bill of lading
or in respect of which a through bill of lading is intended
to be issued, for loss or damage to goods occurring at any
time or place during transit;
(h) any claim for loss of or damage to goods carried in or
on a ship including, without restricting the generality of
the foregoing, loss of or damage to passengers' baggage
or personal effects;
(i) any claim arising out of any agreement relating to the
carriage of goods in or on a ship or to the use or hire of a
ship whether by charter party or otherwise;
2 Canadian maritime law is defined in section 2 of the
Federal Court Act.
3 Although the case was not cited to me I have considered
the Sparrows Point [1951] S.C.R. 396. I think that case is
distinguishable not only on its facts, but because the point
raised as to jurisdiction did not involve a non-resident.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.