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A-234-77
Bright Star Steamship Co. (Plaintiff) (Appellant) v.
The Vessel Lorna P (formerly named Cacouna) and Coastal Shipping Limited—Messagerie Côtière (Defendants & Counter- claimants) (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Montreal, April 17, 1979.
Maritime law — Practice — In action resulting from mari time collision, appellant (plaintiff), under threat of arresting defendant ship, obtained bail from respondents (defendants) as security for its claim — Respondents, on filing counter-claim, sought security, but appellant's ship out of Canadian waters — Trial Division granted respondents' application for order requiring plaintiff to file bail as security for defendants' counter-claim and for order staying plaintiff's action until bail filed — Whether or not Trial Division has power to force a plaintiff in an action for damages resulting from a collision between two ships, to file security for counter-claim of defendant.
APPEAL.
COUNSEL:
Gerald P. Barry for plaintiff (appellant).
Trevor H. Bishop for defendants & Counter- claimants.
SOLICITORS:
McMaster, Meighen, Montreal, for plaintiff (appellant).
Brisset, Bishop, Davidson & Davis, Montreal, for defendants & Counter-claimants.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: The appellant is the plaintiff in an action instituted against the respondents following a collision between two ships.
The appellant commenced its action on May 28, 1973, and, under threat of arresting the defendant ship, obtained from the respondents bail in the amount of $115,000 as security for its claim.
At the same time as the respondents filed a statement of defence, on June 14, 1973, they filed a counter-claim for the amount of the damages suffered by their vessel. At that time, however, the appellant's vessel had left Canadian waters and could not be arrested by the respondents for the purpose of obtaining security for their counter claim.
On March 21, 1977, the respondents applied to the Trial Division for an order "enjoining the plaintiff to file bail in the amount of $115,000 as security for the counter-claim of the defendants and for an order staying the plaintiff's action in this case until such bail has been filed." The Trial Division granted that application and it is against that decision that this appeal is directed.
We are all of the view that the appeal must succeed. In our opinion, the Trial Division no longer has the power that it possessed under sec tion 22 of the former Admiralty Act, R.S.C. 1970, c. A-1, to force a plaintiff, in an action for dam ages resulting from a collision between ships, to file security for the counter-claim of the defend ant.
The appeal will therefore be allowed with costs, the decision of the Trial Division will be set aside and the respondents' application to the Trial Divi sion will be dismissed with costs.
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