Judgments

Decision Information

Decision Content

Marianne McQuarrie, for herself and as the widow of John Glover McQuarrie, deceased (Plaintiff)
v.
The ships U.S.S. American Ranger, Calm Sea, United States Lines Inc., Deep Cove Fishing Co. Ltd., Eugene J. O'Donell, Donald Carl Doving, James Kaj Byberg, Roderick Wilson, and Samuel Don Dumaresq (Defendants)
Trial Division (T-271-74), Collier J.—Vancou- ver, January 28; February 8, 1974.
Maritime law—Jurisdiction—Ex parte motion for leave to serve notice of statement of claim on non-resident defend- ants—Proceedings allowed without prejudicing rights of for eign defendants to challenge order.
The Ferncliff [1972] F.C. 1337; The Martha Russ [1973] F.C. 394; The Ikaros [1973] F.C. 483; The Robert Simpson Montreal Ltd. v. Hamburg-Amerika Linie Norddeutscher [1973] F.C. 1356 discussed.
APPLICATION.
COUNSEL:
J. Adelaar, for plaintiff.
No one for defendants.
SOLICITORS:
Braidwood, Nuttall, Mackenzie, Brewer, Greyell & Company, Vancouver, for plaintiff.
COLLIER J.—The plaintiff applies ex parte for leave to serve notice of the statement of claim on the defendant United States Lines Inc. and Eugene J. O'Donell, ex juris in the State of New York. The corporate defendant referred to was, at material times, the owner of the vessel U.S.S. American Ranger and the defendant O'Donell was her master. According to the statement of claim the other defendants reside or carry on business in British Columbia.
The action is for damages for the death of one John McQuarrie which occurred while attempts were being made to transfer him, at sea, from another vessel to the U.S.S. American Ranger.
As I understand it, the mishap occurred in non- Canadian waters. The action against all defend ants is framed in negligence.
At the hearing, I indicated I had serious doubts as to the jurisdiction of this Court to entertain the claim against the U.S.S. American Ranger and O'Donell, and I referred counsel to views I have expressed as to the so-called Admiralty jurisdiction of this Court in three decisions: The Ferncliff [1972] F.C. 1337; The Martha Russ [1973] F.C. 394; The Ikaros [1973] F.C. 483.
The first two decisions are more directly in point. Appeals have been launched in the latter two and are to be heard this month. I am told the correctness of the Ferncliff decision will be challenged in the two appeals. There is, in addi tion, a recent decision of the Appeal Division of this Court: The Robert Simpson Montreal Lim ited v. Hamburg-Amerika Linie Norddeutscher [1973] F.C. 1356. I think it fair to say it can be contended that some, at least, of the reasoning in that decision overrides the views I, have expressed in the cases cited above.
In all these circumstances, I have decided to exercise the Court's discretion in favour of allowing, now, service ex juris of notice of the statement of claim, rather than dismissing the application or adjourning it pending the out come of the appeals earlier referred to. Without going into detail, I think the course I have indicated may ultimately result in some saving of time, possible appeals, appearances, and costs.
I make it clear, however, that in exercising my discretion in favour of the plaintiff on this application, I must not be taken as agreeing that this Court has jurisdiction in the circumstances. The order therefore goes, at the plaintiff's risk. It is, of course, without prejudice to the rights of these foreign defendants to take whatever proper steps they may feel advisable to set aside this order or service of the process. In view of the somewhat unusual circumstances here, I
should also state that this order is made by me without in any way attempting to restrict, cir cumscribe or affect the decision or opinion of any other Judge of this Court who may hear a motion to set aside this order.
 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.