Melsa International Inc. v. West Islands ( The )
T-2815-96
Nadon J.
11/4/97
12 pp.
Summary judgment-Motion pursuant to RR. 432.1 to 432.7 for summary judgment to dismiss plaintiff's action as disclosing no cause of action, or on basis charter-party terminated by letter, thus extinguishing plaintiff's claim for damages-In main action: invoking delay in providing ship for transport, plaintiff validly cancelled charter-party and found other transporter, then claimed difference between freight payable under two voyage charter-parties: $173,000-Defendant filed counterclaim of $500,000 for wrongful termination of charter-party-Motion dismissed-On second ground: case law to effect charterer exercising option to cancel charter-party also entitled to claim damages from shipowner if, on particular facts of case, failure of vessel to arrive by cancelling date resulting from breach on part of shipowner of obligation to be ready to load by particular date-Herein, there was "expected ready to load" date and express obligation to proceed to port of loading-Plaintiff arguing estimated date not given honestly and upon reasonable grounds and defendants could not sail from last port on approach voyage so as to get to port of loading on time-Case law to effect exercise of right to cancel not depriving charterer of right to claim damages-Claim not "clearly without foundation" so that it "should not take up time and incur costs of trial": test for summary judgment formulated in Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68 (C.A.)-Genuine issue for trial with respect to plaintiff's claim for damages for failure to send nominated vessel to port of loading-Deciding issue will necessarily involve assessing factual evidence which parties will present-Furthermore, plaintiff never did waive right to claim damages-Nor can defendants succeed on first ground: statement of claim disclosing no cause of action-On basis of statements and exhibits attached to affidavit, including relevant charter-party, genuine issues warranting trial-Defendants cannot transform motion for summary judgment into motion to strike under R. 419(1)(a)-Federal Court Rules, C.R.C., c. 663, RR. 419(1)(a), 432.1 to 432.7 (as enacted by SOR/94-41, s. 3).