T-989-92
| MONTREAL, QUEBEC, THIS 15th DAY OF JANUARY 1997 |
| PRESENT: THE HONOURABLE MR. JUSTICE RICHARD |
| BETWEEN: SHORWORLD INTERNATIONAL INC., |
| -and- |
| CRANE CANADA INC., |
| -and- |
| ALL THOSE PERSONS HAVING AN INTEREST IN THE CARGO LADEN ON BOARD THE VESSELS MV LIBERTY SKY AND MV ZARNESTI, |
| Plaintiffs, |
| AND: |
| FEDNAV LTD., |
| -and- |
| FEDERAL MARINE TERMINALS, A division of FEDNAV LTD., |
| -and- |
| GINGKO NAVIGATION S.A., |
| -and- |
| SHEENSTAR SHIPPING S.A., |
| -and- |
| INTREPRINDEREA DE EXPLOATARE A FLOTL MARITIME NAVROM, |
| -and- |
| NAVROM SHIPPING COMPANY, |
| -and- |
| THE OWNERS, CHARTERERS AND ALL OTHERS INTERESTED IN THE VESSELS MV LIBERTY SKY AND MV ZARNESTI, |
| -and- |
| THE VESSELS MV LIBERTY SKY AND MV ZARNESTI, |
| Defendants, |
| REASONS FOR ORDER |
| RICHARD, J.: |
| The Plaintiffs commenced an action for a marine cargo claim in this Court in 1992. The sum claimed was $63,292.91 together with interest on the said sum from April 27, 1991, together with the costs of survey fees and the costs of the action. |
| The trial of the action was set down for three days commencing on January 13, 1997. |
On October 31, 1996, the Defendant Fednav Ltd. (including its Federal Marine Terminals division) made an offer in writing to settle the action for $14,000.00 inclusive of capital and interest. The offer was made without admission of liability. Counsel for Fednav Ltd. acknowledged that the offer to settle was made to trigger the cost consequences of Rule 344.1 if it was not accepted by the Plaintiffs. The offer to settle did not provide for costs. The offer was not revoked.
By letter dated December 9, 1996 counsel for the Plaintiffs accepted the offer of the Defendant Fednav Ltd. of October 31, 1996 for $14,000.00, inclusive of capital and interest as of October 31, 1996. However, the letter recited that although an agreement was reached between the respective solicitors as to the amount of costs to be awarded to the Plaintiffs, the Defendant Fednav Ltd. would not approve it. From the submissions of counsel, I understand that they agreed to make a recommendation as to costs to their respective clients which may or may not be accepted. In these circumstances counsel for the Plaintiffs stated that the necessary representations would be made as to the amount of costs to be awarded to the Plaintiffs at the hearing scheduled for January 13, 1997.
The Plaintiffs seek costs in the action up to the date of the offer to settle based on column III of Part II of Tariff B, together with the costs of this motion. The Defendant claims that Rule 344.1 does not provide for costs where an offer to settle has been accepted and further submits that any costs should be assessed on the basis of column I. Rule 344.1 which came force into on January 13, 1994 reads:
| 344.1 (1) Where the plaintiff makes an offer to settle which has not been revoked, and obtains a judgment as favourable or more favourable than the terms of the offer to settle, the plaintiff shall be entitled to party and party costs to the date of service of the offer and double such costs, excluding disbursement, thereafter, unless otherwise ordered. |
| (2) Unless otherwise ordered, where the defendant makes an offer to settle which has not been revoked, and the plaintiff, |
| (a) fails to obtain a judgment more favourable than the terms of the offer to settle, the plaintiff shall be entitled to party and party costs to the date of service of the offer and the defendant shall be entitled to double such costs, excluding disbursements, from the date of such service to the date of judgment; or |
| (b) fails to obtain judgment, the defendant shall be entitled to party and party costs to the date of the service of the offer and to double such costs, excluding disbursements, from the date of such service to the date of judgment. |
Rule 344.1 makes express provision for the cost consequences of an offer to settle that is not accepted or revoked before judgment, although the Court retains the authority to depart from the prescribed consequences. Under the rule, a party is entitled to the doubling of costs from the date of service of the offer to the date of judgment. The rule anticipates situations resulting in a judgment for a plaintiff. The timing of the offer to settle is in the hands of the parties.
In my opinion, the rule contemplates that a plaintiff who accepts an offer to settle pursuant the Rule 344.1, prior to judgment, is entitled to party and party costs to the date of service of the offer, unless the Court otherwise directs or the parties otherwise agree. This is consistent with the plaintiff's exposure to costs where the plaintiff fails to obtain judgment or a judgment more favourable than the terms of the offer to settle. It is also in keeping with the intent of the rule which is to encourage the settlement of actions prior to trial.
Accordingly, the Plaintiffs are entitled to party and party costs to the date of service of the offer to settle in accordance with column III of Part II of Tariff B.
In this proceeding, the Plaintiffs produced an estimate of their costs. The estimate was $10,292.15 for fees and disbursements. However, counsel for the Plaintiffs invited me to award a lump sum pursuant to Rule 344. In the circumstances, I have decided to award a lump sum in lieu of any taxed costs pursuant to subsection (4) of Rule 344, after having considered the factors enumerated in subsection (3).
Accordingly, the Defendant Fednav Ltd. shall pay to the Plaintiffs the lump sum of $6,000.00 in lieu of any taxed costs and in satisfaction of both fees and disbursements.
J.D. Richard
Judge
Montréal, Québec
January 15, 1997
T-989-92
BETWEEN:
| SHORWORLD INTERNATIONAL |
INC., -and-
CRANE CANADA INC., -and-
| ALL THOSE PERSONS HAVING AN INTEREST IN THE CARGO LADEN ON BOARD THE VESSELS MV LIBERTY SKY AND MV ZARNESTI, |
Plaintiffs,
AND:
FEDNAV LTD., -and-
| FEDERAL MARINE TERMINALS, A division of FEDNAV LTD., -and- |
GINGKO NAVIGATION S.A., -and-
SHEENSTAR SHIPPING S.A., -and-
| INTREPRINDEREA DE |
EXPLOATARE A FLOTL MARITIME
NAVROM, -and-
| NAVROM SHIPPING COMPANY, |
-and- THE OWNERS, CHARTERERS
AND ALL OTHERS INTERESTED IN
THE VESSELS MV LIBERTY SKY
AND MV ZARNESTI, -and-
| THE VESSELS MV LIBERTY SKY |
AND MV ZARNESTI,
Defendants,
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-989-92
| STYLE OF CAUSE: SHORWORLD INTERNATIONAL INC., |
-and-
CRANE CANADA INC.,
-and-
| ALL THOSE PERSONS HAVING AN INTEREST IN THE CARGO LADEN ON BOARD THE VESSELS MV LIBERTY SKY AND MV ZARNESTI, |
Plaintiffs,
AND:
FEDNAV LTD.,
-and-
FEDERAL MARINE TERMINALS, A division of FEDNAV LTD.,
-and-
GINGKO NAVIGATION S.A.,
-and-
SHEENSTAR SHIPPING S.A.,
-and-
INTREPRINDEREA DE EXPLOATARE A FLOTL MARITIME NAVROM,
-and-
NAVROM SHIPPING COMPANY,
-and-
THE OWNERS, CHARTERERS AND ALL OTHERS INTERESTED IN THE VESSELS MV LIBERTY SKY AND MV ZARNESTI,
-and-
| THE VESSELS MV LIBERTY SKY AND MV ZARNESTI, |
Defendants
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 13, 1997
REASONS FOR ORDER BY: The Honourable Mr. Justice Richard
DATED: January 16, 1997
- 2 -
APPEARANCE: Me Louis Buteau for the Plaintiffs
Me Peter W. Davidson for the Defendants
Fednav Ltd. & Federal
Marine Terminals
SOLICITORS OF RECORD:
Me Louis Buteau for the Plaintiffs
SPROULE CASTONGUAY POLLACK
Montreal, Quebec
Me Peter W. Davidson for the Defendants
BRISSET BISHOP Fednav Ltd. & Federal
Montreal, Quebec Marine Terminals