PRACTICE |
Limitation of Actions |
Budget Steel Ltd. v. Pacific Ranger II (The)
T-156-03
2004 FC 1140, Hargrave P.
17/8/04
8 pp.
Maritime law action involving capsize of barge Delta King, loss of scrap metal cargo on January 25, 2002--Capsizing occurred when vessel Zim Shenzhen (now the Navarino) passed close by at speed--Motion by plaintiff to add Zim Shenzhen, owner, Devonshire Corp., presently third parties, as defendants--Motion granted though out of time--Plaintiff had knowledge, could have named Devonshire, ship as defendants--Proposed defendants resist addition, limitation having run--As Heneghan J. wrote in Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd. (2003), 25 C.P.R. (4th) 496 (F.C.T.D.), limitation defence is matter properly to be considered following testing of evidence at trial-- Devonshire's submission: as third party, at outset was not required to get actively involved and, time having passed, now difficult, even impossible, to develop kind of defence it could have had amendments been made in timely manner--June 12, 2003 letter from plaintiff's lawyer to counsel for Devonshire may have lulled it into thinking nothing, apart from third party claim, going to come out of its involvement--Still, Zim Shenzhen's master, through pilot aboard and by American coast guard, certainly would have learned of incident at the time--And, just four months after accident, solicitors for underwriters of tug, Pacific Ranger II (which had Delta King in tow) wrote Devonshire, putting it on notice--Certainly, Devonshire found out about accident within a matter of hours, even minutes, and was made aware of seriousness of incident 16 months later--Ought Devonshire not to have gathered some evidence at earlier date, given that U.S. coast guard records reveal Zim Shenghen did pass barge close by in broad reach of Admiralty Inlet (part of Puget Sound)--While Devonshire prejudiced, this was brought about in part by its failure to treat matter seriously enough when it had opportunity to investigate it--General rule is that an amendment should be allowed so as to determine real questions in controversy provided no resulting injustice not capable of compensation by costs award--Comes down to simple fairness, common sense, interest courts have that justice be done--Should further discoveries prove necessary, such could be subsidized by plaintiff, which failed to name Devonshire as defendant in timely manner--May be that Devonshire did not take matter seriously enough to even obtain report from master, take steps to preserve documents-- But for Devonshire's lack of initial assessment, investigation Court would have been inclined to deny defendants' addition --To an extent, Devonshire's prejudice was self-inflicted.