Belgo Nineira Comercial Exportadora S.A. v. Hadley Shipping Co.
T-2161-94
Hargrave P.
14/5/97
6 pp.
Motion to set aside time extensions for service of statement of claim on ship Clymene, to strike statement of claim as against Clymene, for return of letter of undertaking, solicitor/client costs-When plaintiff unable to locate vessels statement of claim twice renewed without prejudice to owner applying to set them aside in case one or more of ships within jurisdiction since commencement of action-Clymene within jurisdiction at port of Vancouver for 4 weeks-Plaintiff so advised before security given upon threat to arrest ship-Parties agreeing time extension be set aside, letter of undertaking be returned-Jurisdiction over Clymene, as sister ship, founded upon Federal Court Act, s. 43(8): maritime claim as conferred by s. 22 may be exercised in rem against sister ship, subject to common beneficial ownership of wrongdoing ship and sister ship at time action brought-On refusal to extend time for service, or rescission of time extension order, no in rem jurisdiction to bring s. 43(8) into play-Court not having jurisdiction over Clymene-Clymene deleted from action by amendment to style of cause-To leave Clymene in action even in name only could be embarrassment to owner, abuse of process-Reference, description of Clymene in statement of claim also deleted-Plaintiff ought not to have threatened to arrest Clymene once owner forwarded evidence indicating extension for service should be set aside-Owner of Clymene put to considerable expense by questionable approach adopted by plaintiff-Award of costs ought to approach indemnity; costs awarded at maximum under column IV of Tariff B-Costs not on higher scale as isolated incident, plaintiff voluntarily returned letter of undertaking, agreeing extension ought not to have been granted-Costs payable forthwith as no certainty action will proceed-Federal Court Act, R.S.C., 1985, c. F-7, ss. 22, 43(8) (as am. by S.C. 1990, c. 8, s. 12).