T-3586-75
Newfoundland Steamships Limited, Clarke Trans
portation Canada Ltd., those persons interested in
the cargo laden on board the ship Fort St. Louis
(Plaintiffs)
v.
Canada Steamship Lines, Limited, and W. F.
Walsh Limited (Defendants)
Trial Division, Walsh J.—Montreal, June 19;
Ottawa, June 22 and 26, 1978.
Practice — Application to amend statement of claim by
adding more definitive list of plaintiffs — Style of cause
included `those persons interested in cargo ..." , with notation
that these persons listed in Appendix — Prescription period —
Whether or not too late to add additional names of persons
interested in cargo — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 38 — Quebec Civil Code, Article 2261 —
Federal Court Rules 424 and 425.
In a complex action for damages for loss of cargo allegedly
due to negligence, plaintiffs move for leave to amend their
statement of claim by substituting a more definitive list of
plaintiffs attached to the motion for Appendix A which was
attached and filed with plaintiffs' original statement of claim.
The plaintiffs with whom this motion is concerned are merely
designated in the style of cause as "those persons interested in
the cargo laden on board the ship Fort St. Louis when she
caught fire at the Port of Montreal ..." with the statement
following in brackets that "a detailed list of said interested
parties is annexed hereto." The plaintiffs' claims are principally
based on tort which, by virtue of Article 2261 of the Quebec
Civil Code, is prescribed by two years. By virtue of section 38
of the Federal Court Act the laws relating to prescription and
the limitations of actions in force in any province between
subject and subject apply to any proceedings in the Court in
respect of any cause of action arising in such province. Defend
ants argue, therefore, that it is now too late to add additional
names of persons interested in the cargo by filing an amended
Appendix A to the statement of claim.
Held, the application is allowed. This is not a case where the
claims of any new parties appearing in the Appendix now
sought to be substituted for the former Appendix are really new
claimants whose claims are prescribed but rather that they are
included in the designation of persons interested in the cargo on
the ship. It is merely the substitution of new particulars which
have since come to light for former particulars, and moreover in
the great majority of the cases merely adds the name of the
shipper as well as the consignee, or conversely, and provides
defendants with greater details from which to check the claims.
Leeson Corp. v. Consolidated Textiles Mills Ltd. [1975]
F.C. 258 and [1978] 2 S.C.R. 2, referred to. Couture v.
The Queen [ 1972] F.C. 1137, referred to.
APPLICATION.
COUNSEL:
David Angus and Pierre Côté for plaintiffs.
R. Chauvin, Q.C. for defendant W. F. Walsh
Limited.
G. Barry for defendant Canada Steamship
Lines, Limited.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiffs.
Chauvin, Marler & Baudry, Montreal, for
defendant W. F. Walsh Limited.
McMaster, Meighen, Montreal, for defendant
Canada Steamship Lines, Limited.
The following are the reasons for judgment
rendered in English by
WALSH J.: Plaintiffs move for leave to amend
their statement of claim by substituting the list
attached to the motion for Appendix A which was
attached to and filed with the plaintiffs' original
statement of claim herein and referred to in the
style of cause and in paragraph 3 of the said
statement of claim. The action is a complex one in
which plaintiff Newfoundland Steamships Lim
ited, engaged in the business of carrying package
freight between the Port of Montreal and the Ports
of Corner Brook and St. John's, Newfoundland,
were time charterers of the ship Fort St. Louis
owned by defendant Canada Steamship Lines,
Limited, and plaintiff Clarke Transportation
Canada Ltd. were the managing operators on
behalf of Newfoundland Steamships Limited of
the aforesaid business and also acted as stevedores
and terminal operators at the Port of Montreal.
A large number of owners, shippers and con-
signees legally interested in and entitled to claim
for the cargo lost suffered damage as a result of a
fire which broke out on the ship Fort St. Louis in
Montreal on October 15, 1974. It is alleged that
defendant Canada Steamship Lines, Limited is the
owner of the ship and the employer of all the
persons comprising her crew and the carrier and
legal custodian of the cargo laden on board.
Defendant W. F. Walsh Limited are marine engi
neers and contractors providing services including
hull and deck repairs and welding in Montreal. On
October 15, 1974, after a substantial amount of a
cargo consigned to Newfoundland had been loaded
in the hold the Walsh welding crew, allegedly at
the request of defendant Canada Steamship Lines,
Limited, commenced carrying out certain repairs
to the steel deck plates as a result of which a fire
occurred causing extensive damage to the plain
tiffs. The amount of claim for loss of and damage
to cargo is $492,943.28. General average was in
due course declared by defendant Canada Steam
ship Lines, Limited following the fire and the
report on this has now been completed. In the case
of defendant Canada Steamship Lines, Limited it
is alleged that they had the care, custody and
control of the cargo and failed to insure that it was
safely kept and carried to its destination in good
order and condition. In addition to this, negligence
is alleged against said defendant, while the claim
against defendant W. F. Walsh Limited is based
entirely on negligence. Each of the plaintiffs has a
separate claim for damages, however, the cargo
interest claim being in the amount of $509,443.28
as a result of the adding of surveyors' and adjust
ers' fees of $16,500 to the amount of the loss and
damage claim for the cargo itself. It is to be noted
that, whether or not the cargo interests would have
claims based on contract against Newfoundland
Steamships Limited or Clarke Transportation
Canada Ltd. their co-plaintiffs, these claims have
not been settled by the co-plaintiffs who are not
therefore suing defendants on the basis of subroga-
tion or an assignment of a cargo claim, but only
for damages suffered by them personally. It is also
to be noted that there was no contract between any
of the cargo interests and Canada Steamship
Lines, Limited, or of course W. F. Walsh Limited.
The question of whether there would be a claim
against defendant Canada Steamship Lines, Lim
ited on the basis of its custody of the cargo loaded
on board the ship when the fire broke out is not
one to be decided on the present motion, but it
would appear that the claims of plaintiffs are
principally based on tort which by virtue of Article
2261 of the Quebec Civil Code is prescribed by
two years.
By virtue of section 38 of the Federal Court Act
the laws relating to prescription and the limitation
of actions in force in any province between subject
and subject apply to any proceedings in the Court
in respect of any cause of action arising in such
province. Defendants contend therefore that it is
now too late to add additional names of persons
interested in the cargo laden on board the ship by
means of filing an amended Appendix A to the
statement of claim, proceedings having been ini
tiated on October 14, 1975, one year after the
cause of the action arose.
Plaintiffs, in seeking to make the amendment,
rely on Rule 424 of the Federal Court Rules
which reads as follows:
Rule 424. Where an application to the Court for leave to make
an amendment mentioned in Rule 425, 426 or 427 is made
after any relevant period of limitation current at the date of
commencement of the action has expired, the Court may,
nevertheless, grant such leave in the circumstances mentioned
in that Rule if it seems just to do so.
Rules 426 and 427 have no application as they
deal respectively with change of capacity or new
causes of action, but Rule 425 dealing with the
correction of a name reads as follows:
Rule 425. An amendment to correct the name of a party may
be allowed under Rule 424, notwithstanding that it is alleged
that the effect of the amendment will be to substitute a new
party, if the Court is satisfied that the mistake sought to be
corrected was a genuine mistake and was not misleading or
such as to cause any reasonable doubt as to the identity of the
party intending to sue, or, as the case may be, intended to be
sued.
It has been clearly established by the jurispru
dence however (see Leesona Corporation v. Con
solidated Textiles Mills Ltd.' and Couture v. The
Queen 2 ) that since the rules of Quebec law relat
ing to short prescription are not rules of procedure
but substantive in nature they cannot be altered by
' [1975] F.C. 258.
2 [1972] F.C. 1137.
Rule 424 when they become applicable by virtue
of section 38 of the Federal Court Act so as to
permit an amendment after prescription has been
acquired. It is significant however that in the
Couture case (supra) Pratte J. permitted the
amendment because the suppliant had interrupted
prescription by bringing the action and that the
amendment of the petition was not sought so as to
assert a right other than that on which prescription
was interrupted but merely to allege new facts
establishing the existence of the same right. In the
Leesona case (supra) the wrong defendant had
been sued, both companies having similar names,
and despite the fact that plaintiff had been led into
error by defendant in previous correspondence it
was nevertheless held that there could not be a
change of party made by an amendment after
prescription of the right to claim had taken place.'
In the present case the situation is unusual. Had
the various parties who suffered cargo loss or
damage been designated by name in the style of
cause and their several claims set out individually
in the body and conclusion of the statement of
claim, it would be clear that no other plaintiffs
could be made parties to the act nor claims made
on their behalf by amendment after prescription
had taken place. In the present case however the
plaintiffs with whom we are concerned in the
present motion are merely designated in the style
of cause as "those persons interested in the cargo
laden on board the ship Fort St. Louis when she
caught fire at the Port of Montreal while lying
alongside Shed 68 October 15th, 1974." Following
this in brackets appears the statement "a detailed
list of said interested parties is annexed hereto".
Paragraph 3 reads as follows:
The Plaintiffs Those Persons Interested in the Cargo Laden
on Board the ship "Fort St. Louis" (hereinafter called "the
3 This judgment of the Appeal Court to which counsel
referred me has since been reversed in the Supreme Court by
judgment dated November 16, 1977 [[19781 2 S.C.R. 2]. (See
my addendum at end of reasons.)
Cargo Interests") were at all material times the owners, ship
pers and/or consignees of and, in any event, the persons legally
interested in and entitled to claim for cargo lost, damaged or
destroyed, as the result of a fire which broke out on board the
ship "FORT ST. LOUIS" on the 15th day of October, 1974, and
said Plaintiffs together with the waybill numbers under which
their lost, damaged or destroyed cargo was shipped are all fully
listed on the Appendix to this Statement of Claim.
The words "fully listed" are unfortunate in that,
as defendants contend this would imply that the
listing is complete and that the style of cause in
referring to the detailed list of the interested par
ties annexed thereto has the effect of incorporating
them individually as co-plaintiffs so that no others
can be added now that prescription has taken
place.
Plaintiffs for their part contend that the list was
merely evidential in nature and to avoid a motion
for particulars and while it was as complete as
could have been provided at the time from the
documents then available, being based merely on
the waybills, it has since been found as a result of
the documents provided during the general aver
age adjustment, claims made, and adjusters'
reports, that more complete information can be
given in the form of the new Appendix which it is
now sought to produce which gives in each case the
names of both the consignee and the shipper, and
adds a relatively small number of new claimants to
the original list, without, it should be noted, in any
way changing the total amount of the claim set out
as $492,943.28. It is contended that the general
designation as plaintiffs of "those persons interest
ed in the cargo laden on board the ship Fort St.
Louis" was sufficient to cover all persons so inter
ested and this is not limited by the fact that some
of them may have been left off the original list.
Moreover, it is contended that defendants have
been well aware at all stages of the discussions
with insurers, adjusters, and between counsel of
the details of the cargo claims and they are in no
way being taken by surprise or prejudiced by now
being furnished with a more definitivé list than
that furnished at the time of the institution of
proceedings, and therefore will suffer no prejudice
if the • amendment is permitted, whereas on the
other hand a number of persons who suffered loss
or damage to cargo on the ship as a result of the
fire will suffer grave prejudice if their claims are
held to be prescribed merely because they were
omitted from a list filed as an Appendix to the
statement of claim. Plaintiffs contend they do not
seek any substitution of "new party" for any of the
parties named, nor is there "any reasonable doubt
as to the identity of the party intending to sue"
within the meaning of Rule 425 since defendants
at all times knew that the parties intending to sue
were all those interested in the cargo laden on
board the ship, whether such interest was as "own-
ers, shippers and/or consignees of and, in any
event persons legally interested in the title to claim
for the cargo lost, damaged or destroyed".
On the whole therefore, I am of the opinion that
this is not a case where the claims of any new
parties appearing in the Appendix now sought to
be substituted for the former Appendix are really
new claimants whose claims are prescribed but
rather that they are included in the designation of
persons interested in the cargo on the ship. It is
merely the substitution of new particulars which
have since come to light for former particulars,
and moreover in the great majority of the cases
merely adds the name of the shipper as well as the
consignee, or conversely, and provides defendants
with greater details from which to check the
claims. It is not necessary to decide at this stage of
the proceedings whether the claimant should be
the shipper or the consignee but justice requires
that whoever suffered the loss should be compen
sated for it, provided that the total amount of the
claim does not exceed $509,443.28 (which includes
surveyors' and adjusters' fees) sought for the
"Plaintiff cargo interest for distribution as their
interests may appear" as stated in conclusion of
the original statement of claim.
Leave to amend will therefore be granted but
with costs against plaintiffs in any event of the
cause.
Addendum
When these reasons were dictated I was erroneous
ly referred to the Appeal Court decision in the
Leesona case. The reversal of same in the Supreme
Court permitted the amendment to be made, and
the judgment [[1978] 2 S.C.R. 2 at page 4] writ
ten by the Honourable Mr. Justice Pigeon greatly
strengthens the conclusion I had already reached
herein that the amendment should be allowed as
defendants are in no way taken by surprise.
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.