Date: 20000118
Docket: T-2282-99
MONTREAL, QUEBEC, THIS 18th DAY OF JANUARY 2000
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
Admiralty Action In Rem
Between:
INTER ATLANTIC CANADA LIMITED
Plaintiff
AND
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP "RIO CUYAGUATEJE" AND HER CARGO
Defendants
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion by Dragsea Fishing Company (Dragsea) for an Order that the Statement of Claim in rem and the Warrant of Arrest of the defendant ship "Rio Cuyaguateje" be struck out, and that the arrest of the defendant ship and its cargo be declared invalid for lack of jurisdiction of this Court in accordance with rules 208 and 221(1)(a ), (c) and (f) of the Federal Court Rules, 1998 (the rules).
[2] Considering the plaintiff's Statement of Claim;
[3] Considering that when the jurisdiction of this Court is being contested under rule 221, evidence is admissible in support of same (MIL Davie v. Hibernia Management and Dev. Co. (1998), 226 N.R. 369 (F.C.A.));
[4] Considering, inter alia, the evidence in the form of the affidavit of Mr. Geoff Christopherson dated January 7, 2000 and in particular the agreement dated February 12, 1999 as between the plaintiff and Dragnets annexed to said affidavit as Exhibit "A" (the Agreement);
[5] Considering that this Court is of the view that the plaintiff does not benefit of any cause of action or right outside the Agreement which the plaintiff alleges has been breached;
[6] Considering that the subject matter of this action is the alleged breach of the Agreement which pertains to the commercialization or access to for the purpose of utilization of a NAFO allocation of North Atlantic shrimp to Cuba;
[7] Considering that based on the decision of this Court in Bornstein Seafoods Canada Ltd. v. Hutcheon (1997), 140 F.T.R. 241 - which is far more applicable to the case at bar than the decision of the Supreme Court in Bow Valley Husky v. Saint John Shipbuilding, [1997] 3 S.C.R. 1210 - the subject matter of this action is not "so integrally connected to maritime matters as to be legitimate Canadian maritime law within the federal legislative competence" (see Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. , [1986] 1 S.C.R. 752);
[8] Therefore, under subsection 21(1) of the Federal Court Act (the Act), it is clear and obvious that this Court lacks jurisdiction over the plaintiff's claim.
[9] As far as paragraph 21(2)(m) of the Act is concerned, it is clear and obvious to this Court that the plaintiff's allegation at paragraph 8 of its Statement of Claim cannot stand. In that paragraph the plaintiff states that "the provision of the fishing licence to the Defendant ship, a fishing ship, is the supply of a necessary, or in the alternative, is the supply of goods, materials or services to the Defendant ship".
[10] In that regard, reference is made to paragraphs 45, 46, 47, 49i), 49iii) and 50 of Dragsea's written representations filed on January 10, 2000 in support of the instant motion (Dragsea's representations).
[11] Should either of the above conclusions with respect to subsection 22(1) or paragraph 21(2)(m) of the Act be wrong, for the reasons expressed in paragraphs 23 to 37 of Dragsea's representations, this Court is of the clear and obvious view that the defendant Ship and its cargo are not the subject of the action within the meaning of subsection 43(2) of the Act.
[12] Therefore, any jurisdiction conferred on the Court by section 22 of the Act cannot be exercised in rem pursuant to section 43(2) thereof.
[13] Considering the above reasons, it is hereby ordered that pursuant to rule 221(1)(a), the Statement of Claim in rem in the instant case and the warrant of arrest of the defendant ship the "Rio Cuyaguateje" and its cargo are struck out for lack of jurisdiction of this Court.
[14] Considering the above conclusion, the Court does not have to deal with Dragsea's other reliefs.
[15] Dragsea's entitlement to damages further to the detention of the defendant ship and its cargo is hereby reserved and shall be the subject of a further recourse.
[16] Costs of this motion to Dragsea.
Richard Morneau
Prothonotary