T-1695-74
Liquor Control Board of Ontario and C. Da Silva
(Vinhos) S.A.R.L. (Plaintiffs)
v.
M.S. "Inga" Schiffahrtsges, Dietrich Sander
Bereederungs G.m.b.H. & Co., Dietrich Sander,
E.G. Thomson & Co., Federal Atlantic Lakes
Line, Federal Commerce and Navigation Company
Limited and the Owners and Charterers of the
Vessels Bentainer and Benhiant (Defendants)
Trial Division, Walsh J.—Montreal, February 24
and 26, 1975.
Jurisdiction—Motion to dismiss service of statement of
claim—Defendants owners of ship—Cargo transferred to
second ship—Whether damage occuring within jurisdiction of
Court—Federal Court Rule 307.
Defendants M.S. "Inga" Schiffahrtsges, Dietrich Sander
Bereederungs G.m.b.H. & Co., and Dietrich Sander moved to
dismiss service of the statement of claim. Defendants were
owners and operators of the ship Bentainer, on which a cargo of
liquor was shipped from Leixoes, Portugal, to Antwerp, Bel-
gium. Cargo was then transhipped to the Benhiant, owned by
defendants E.G. Thomson Bulk Carriers Limited and William
Thomson & Co., and chartered by Federal Commerce and
Navigation Company, for shipment to Toronto. Defendants
maintain that any damage which may have occurred to the
cargo while on board the Bentainer did not occur within the
jurisdiction of the Court.
Held, dismissing the motion, there was only one bill of
lading, indicating place of receipt as Leixoes and port of lading
as Antwerp, with port of discharge shown as Toronto. This was
on a Federal Atlantic Lakes Line bill of lading; this company,
along with Federal Commerce and Navigation Company Lim
ited, has its head office in Montreal. Plaintiffs cannot say
where the loss occurred, and under Rule 307, service ex furls is
left to the discretion of the Court, which discretion has been
properly exercised.
Oy Nokia Ab v. The "Martha Russ" [1974] 1 F.C. 410,
distinguished.
APPLICATION.
COUNSEL:
No one for plaintiff.
T. Bishop for defendants M.S. "Inga" Schif-
fahrtsges, Dietrich Sander Bereederungs
G.m.b.H. & Co. and Dietrich Sander.
SOLICITORS:
Du Vernet, Carruthers, Toronto, for
plaintiffs.
Brisset, Bishop & Davidson, Montreal, for
defendants.
The following are the reasons for judgment
rendered in English by
WALSH J.: Defendants, M.S. "Inga" Schif-
fahrtsges, Dietrich Sander Bereederungs G.m.b.H.
& Co., and Dietrich Sander moved to dismissed
the service of the statement of claim on them. This
motion follows a conditional appearance filed on
January 22, 1975 pursuant to an order of the
Court of January 13, 1975 permitting this condi
tional appearance. The claim in the action results
from loss of a portion of a cargo of liquor stuffed
in containers in Leixoes, Portugal and shipped on
the vessel Bentainer of which defendants M.S.
"Inga" Schiffahrtsges, Dietrich Sander Bereede-
rungs G.m.b.H. & Co., and Dietrich Sander are
allegedly the owners and operators or managers
for shipment to Antwerp, Belgium where said
containers were transhipped to the Benhiant
owned by defendants E.G. Thomson Bulk Carriers
Limited and William Thomson & Co., and char
tered by defendant Federal Commerce and Navi
gation Company Limited for shipment to Toronto
where the loss was first ascertained. Despite the
similarity in names, it is not alleged that there was
any connection between the Bentainer and the
Benhiant as to ownership or management. It is the
contention of defendants M.S. "Inga" Schif-
fahrtsges, Dietrich Sander Bereederungs G.m.b.H.
& Co. and Dietrich Sander that the voyage of the
Bentainer was between Leixoes, Portugal and Ant-
werp, Belgium, she did not at any time come
within the territorial waters of Canada and that if
any damage took place to the shipments while on
board the Bentainer this did not take place within
the jurisdiction of this Court, that the agents of
the Bentainer in Portugal who arranged to consoli
date plaintiffs' shipments were acting in their
capacity as agents for the consignee in Belgium
and for defendant Federal Commerce and Naviga
tion Company Limited, which latter company was
not at any time the charterer nor the owner of the
Bentainer.
The plaintiffs claim damages in both breach of
contract and tort and are apparently not in a
position to determine specifically where the loss
took place. A large number of containers were
received on board the Bentainer at Leixoes under a
clean bill of lading which foresaw the tranship-
ment of the goods at Antwerp to Toronto. The bill
of lading indicates place of receipt as Leixoes and
port of loading as Antwerp and carriage by the
Bentainer with the name of the vessel to complete
the carriage from Antwerp left in blank but the
port of discharge being shown as Toronto. This
was on a Federal Atlantic Lakes Line bill of lading
form which defendant, together with Federal
Commerce and Navigation Company Limited has
its head office in the City of Montreal, in the
Province of Quebec. The facts in this case are
therefore substantially different from those in the
case of Oy Nokia Ab v. The `Martha Russ"' on
which defendants M.S. "Inga" Schiffahrtsges,
Dietrich Sander Bereederungs G.m.b.H. & Co.,
and Dietrich Sander rely. In that case there were
clearly two separate bills of lading and the judg
ment also refers to the fact on page 414:
... that no satisfactory reason has been established why, when
the plaintiff was aware before the goods left Germany that
damage had been sustained, steps were not taken there in the
presence of the defendant, E. Russ & Co. or its representative
to have the extent of such damage ascertained.
This is not the case here where it is apparent that
plaintiffs are not in a position to say where the loss
occurred. The said judgment also refers to the fact
that Rule 307 of the Federal Court Rules respect
ing service ex juris leaves this to the discretion of
the Court and on the affidavit and facts before
him at the time, Gibson J. properly exercised his
discretion in granting the order for service ex juris
dated September 23, 1974. On the present motion,
to set this order aside with respect to the defend
ants M.S. "Inga" Schiffahrtsges, Dietrich Sander
Bereederungs G.m.b.H. & Co., and Dietrich
Sander I find that the additional information
adduced by the supporting affidavit does not justi
fy setting this service aside and that said defend
ants M.S. "Inga" Schiffahrtsges, Dietrich Sander
Bereederungs G.m.b.H. & Co., and Dietrich
' [1974]I F.C. 410.
Sander should properly remain parties to the
proceedings.
ORDER
Motion is dismissed, with costs.
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