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T-3109-80
Wedgeport Canners Limited, Joan Marie Gar land, and Joan Marie Garland as Administratrix of the Estate of Cyril Garland, deceased (Plaintiffs)
v.
The owners and all others interested in the ship Garcilaso, and the ship Garcilaso (Defendants)
Trial Division, Walsh J.—Ottawa, January 14, 1981.
Practice — Motion by defendants for particulars and for dispensation from filing a Preliminary Act under Rule 1013 Allegation by plaintiffs that their vessel was struck by defend ants' vessel — Defendants denying any involvement in collision — Motion dismissed — Action being one for damage by collision between vessels, Rule 1013 applies unless the Court otherwise orders — Preliminary Act filed by plaintiffs; hence defendants precluded from demanding particulars — Federal Court Rules 1013(l)(a),(b),(c), 1016.
MOTION. COUNSEL:
James E. Gould for plaintiffs. J. A. Laurin for defendants.
SOLICITORS:
McInnes, Cooper & Robertson, Halifax, for plaintiffs.
McMaster Meighen, Montreal, for defend ants.
The following are the reasons for judgment rendered in English by
WALSH J.: Defendants move for particulars and for dispensation from filing a Preliminary Act. The matter is to be dealt with pursuant to Rule 324. Full and complete submissions have been made by counsel for the plaintiffs objecting to the motion, by counsel for defendants in reply to this, and in a further reply to this submission by counsel for plaintiffs. The situation is a most unusual one. Plaintiffs' fishing vessel Clissie Eldora was allegedly struck and sunk "at or about 0000 hours on the 24th day of June, 1979, while engaged in fishing approximately 75 miles off the southeast coast of the Province of Nova Scotia" by the
defendant ship Garcilaso, with the Master of plaintiff vessel going down with his ship. Defend ants in the affidavits supporting the motion and the submissions made with respect thereto deny any knowledge of any collision, or defendant vessel having struck any other vessel. It is evident there fore that any information which they can supply in a Preliminary Act would be very limited in extent and could not possibly fully comply with para graph (2) of Rule 1013 stating what a Preliminary Act must contain. It would appear that at most they could merely give information, under reserve of not admitting any collision, the name of the Master of the Garcilaso at that date, the approxi mate location of the defendant vessel and her course at the alleged time of collision, the state of the weather, the direction and force of the wind and current and the speed of the vessel at the alleged time.
Although plaintiffs will have to prove in order to have any claim at all that there was a collision with defendant vessel, and this is by no means certain since an investigation by the Canadian Coast Guard (although this in itself is not conclu sive) was unable to establish the identity of the vessel involved in the collision, I believe that the action must be considered as "an action for damage by collision between vessels" within the meaning of Rule 1013 dealing with Preliminary Acts. Whether or not a collision took place with defendant vessel is a matter for proof but the action itself is clearly one for damage by collision and therefore the rules relating to Preliminary Acts apply unless the Court otherwise orders.
Plaintiffs filed their Preliminary Act and it therefore appears that Rule 1013 (1) (c) applies and that defendants are precluded from demanding particulars by applying the general Rule 415 relat ing to particulars.
It is true that, as defendants contend, plaintiffs in addition to filing a Preliminary Act gave certain details in their statement of claim including exten sive allegations as to the alleged fault of defend ants which would normally invite an application for particulars. Rule 1013(1)(a) provides that "the
statement of claim or declaration need not contain any more particulars concerning the collision than are necessary to identify it to the opposing party" but it is significant that the words "need not" are used and I do not believe that the fact that the statement of claim contains unnecessary allega tions in view of the filing of the Preliminary Act justifies a departure from the Rules so as to permit an order for particulars. Similarly the defendants in filing a Preliminary Act which must necessarily be incomplete since defendants do not admit being involved in any collision, can avail themselves of Rule 1013(1)(b) and file a defence which does not contain any particulars concerning the alleged collision.
Moreover Rule 1016 provides as follows:
Rule 1016. Paragraph (2) of Rule 465, which provides for examination for discovery before the defence has been filed, has no application in an action for damage by collision between vessels.
It is clear that to throw any light on the matter at all both parties will have to be examined for discovery and this would be best accomplished if defendants file a defence denying their involve ment in collision with plaintiffs' vessel, accom panied by a Preliminary Act giving what informa tion they can with respect to the Garcilaso on or about 00:00 hours on the 24th day of June, 1979, the time indicated by plaintiffs as that of the alleged collision.
After the discoveries pleadings can be amended with leave of the Court pursuant to Rule 420 even if as a result further discoveries become necessary.
Defendants further contend that no details were given with respect to amounts of damages claimed by plaintiffs, but this is unnecessary to enable defendants to plead at this stage of the proceed ings, and in any event in the circumstances of this case there might well be a determination of the issue of the liability of defendants on the merits with a subsequent reference as to damages.
Defendants' motion to be dispensed from filing a Preliminary Act is therefore dismissed as well as their demand for particulars at this stage of the proceedings, with costs.
ORDER
Defendants' motion to be dispensed from filing a Preliminary Act and requiring plaintiffs to file particulars with respect to certain allegations of their statement of claim is dismissed with costs. Defendants shall file a statement of defence within 15 days accompanied by a Preliminary Act pursu ant to Rule 1013.
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