T-271-74
Marianne McQuarrie, for herself and as the
widow of John Glover McQuarrie, deceased
(Plaintiff)
v.
The ships U.S.S. American Ranger, Calm Sea,
United States Lines Inc., Deep Cove Fishing Co.
Ltd., Eugene J. O'Donell, Donald Carl Doving,
James Kaj Byberg, Roderick Wilson and Samuel
Don Dumaresq (Defendants)
Trial Division, Collier J.—Vancouver, July 11,
August 1, 1974.
Maritime law—Jurisdiction—Action for damages in death
of husband—Accident on high seas—No ground for im-
pleading American vessel—Service outside jurisdiction set
aside.
An ex parte order was made ([1974] 1 F.C. 42) for service
outside the jurisdiction of notice of the statement of claim
on the defendant United States Lines Inc., as owner, and the
defendant O'Donell, as master, of the U.S.S. American
Ranger, without prejudice to the right of the foreign defend
ants to move against the service. After service, the Ameri-
can company was granted leave to enter a conditional
appearance; it then moved to set aside service as made
beyond the jurisdiction. Material on the motion showed that
the deceased, a native of British Columbia, was in charge of
the defendant ship Calm Sea, when it encountered difficul
ties on the high seas. A radio call for help was answered by
the U.S.S. Ranger. The crew of the Calm Sea was rescued
but the deceased was lost with his ship. The owner and the
crew of the Calm Sea, residents of British Columbia, were
joined as defendants.
Held, an order impleading the American company was
unwarranted and service upon it must be set aside: The
Martha Russ [1974] 1 F.C. 410 affirming [1973] F.C. 394;
The Ikaros [1973] F.C. 483, followed.
Moran v. Pyle National (Canada) Ltd., (1974) 43
D.L.R. (3d) 239, referred to.
MOTION.
COUNSEL:
J. W. Dobbin for plaintiff.
P. G. Bernard for defendant United States
Lines Inc.
SOLICITORS:
Braidwood, Nuttall, Mackenzie, Brewer,
Greyell & Co., Vancouver, for plaintiff.
R. V. Anderegg, Vancouver, for defendants
the ship Calm Sea, Deep Cove Fishing Co.
Ltd., Donald Carl Doving, James Kaj
Byberg, Roderick Wilson and Samuel Don
Dumaresq.
Macrea, Montgomery, Spring and Cunning-
ham, Vancouver, for defendant United
States Lines Inc.
The following are the reasons for judgment
delivered in English by
COLLIER J.: On February 7, 1974, [[1974] 1
F.C. 42] an order was granted by me giving the
plaintiff leave to serve notice of the statement
of claim on the defendants United States Lines
Inc. and Eugene J. O'Donell out of the jurisdic
tion in the State of New York. Service has been
effected on the defendant United States Lines
Inc. (hereafter "the American company").
O'Donell has not yet been served. The Ameri-
can company, by motion, asks for leave to file a
conditional appearance in order to allow it to
object to the service of the proceedings and to
the jurisdiction of this Court. An order will go in
those terms.
By a further motion, the American company
requests an order setting aside service of the
notice of the statement of claim on it. The
grounds are that this Court has no jurisdiction
(in the circumstances here) in respect of the
claim asserted against the American company,
or alternatively the discretion of the Court to
authorize service out of the jurisdiction ought
not to have been exercised, in this case, in
favour of the plaintiff.
The defendant company filed an affidavit in
support of its motion. I shall not rely on the
matters therein deposed to, except where they
are favourable to the plaintiff. I shall be gov
erned (as to the facts) on those alleged in the
statement of claim and in the two affidavits of
Mr. Adelaar, sworn January 23 and 29
respectively.
This action is for damages for the death of
one John McQuarrie. He was in charge of a
fishing vessel, the Calm Sea which was on a
voyage to Vancouver via the Panama Canal. On
January 19, 1973 the vessel encountered dif
ficulties. On January 20th she radioed for help.
The U.S.S. American Ranger answered the call
and sighted the Calm Sea that day at a location
specified in the statement of claim. There is no
dispute that this position was on the high seas.
The U.S.S. American Ranger rescued the
crew from the Calm Sea but while endeavouring
to bring McQuarrie aboard, he was lost. The
Calm Sea was also lost.
McQuarrie was a British Columbia resident.
His widow claims damages arising out of his
death. Negligence is alleged against those on
board the U.S.S. American Ranger and her
owners. The American company is the owner of
the U.S.S. American Ranger and O'Donell was
her Master at the time.
Deep Cove Fishing Co. Ltd. is a British
Columbia company and was the owner of the
Calm Sea. The defendant Doving is alleged to
be the owner of the British Columbia Company.
He is a resident of British Columbia. The
defendants Byberg, Wilson and Dumaresq, all
of whom are British Columbia residents as well,
were crew members on board the Calm Sea.
The plaintiff alleges that those on board the
Calm Sea, including the named British
Columbia defendants, were negligent in the
course of the rescue attempt and this contribut
ed to the death of McQuarrie.
When I granted the order dated February 7,
1974 I gave reasons in which I stated "... I
must not be taken as agreeing that this Court
has jurisdiction in the circumstances." The
reason I granted the order at that time was
because two decisions of mine dealing with
jurisdiction in admiralty in this Court were
under appeal: The Martha Russ [1973] F.C.
394 and the Ikaros [1973] F.C. 483. Those
appeals have now been heard. In the Martha
Russ [1974] 1 F.C. 410, the Appeal Division
affirmed my decision setting aside an order for
service ex juris.
I do not see any substantial difference
between this case and the circumstances in the
Martha Russ. In my view an order here im-
pleading the American company is not warrant
ed. To me there is less ground in this case for
requiring the American company to answer the
plaintiff's claim in this Court than there was for
the plaintiff's request that the foreign company
in the Martha Russ appear in this Court to
answer the plaintiff's claim there.
I referred counsel to the recent decision of
the Supreme Court of Canada in Moran v. Pyle
National (Canada) Ltd. (1974) 43 D.L.R. (3d)
239. Unfortunately, I do not think it is of assist
ance to the plaintiff here.
There will therefore be an order setting aside
service of the notice of the statement of claim
upon the American company. It is entitled to its
costs of this motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.