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A-212-75
Santa Maria Shipowning and Trading Company S.A. (Respondent) (Plaintiff)
v.
Hawker Industries Limited (Defendant)
and
Bethlehem Steel Corporation (Appellant) (Defendant)
Court of Appeal, Jackett C.J., Urie J. and Hyde
D.J. Halifax, February 6, 1976.
Jurisdiction Maritime law—Practice—Whether Trial Division wrongly exercised discretion as to whether statement of claim should be struck out as disclosing no cause of action within jurisdiction of Trial Division Appellant contending that whole of contractual cause of action outside Canada Whether an implied limitation on subject matter jurisdiction of Court to subject matter arising within geographical limits within which Court can exercise jurisdiction Federal Court Act, s. 22(2)(n) and Rule 4/9.
Appellant appeals a decision of the Trial Division which held that a cause of action was disclosed by the statement of claim and that the question of jurisdiction should be determined on the facts as found by the Trial Judge. Appellant contends that the whole of the contractual cause of action is geographically situated outside Canada and not within the jurisdiction of the Trial Division. Such argument was based on an implied limita tion on the subject matter jurisdiction of a Court to subject matter arising within geographical limits within which the Court can exercise jurisdiction.
Held, the appeal is dismissed. The statement of claim alleges a contract and breach, and the matter seems to have been so pleaded as to permit proof of facts which would bring the claim within section 22(2)(n) of the Federal Court Act. In the absence of any knowledge of authority, the Court is not per
• suaded that admiralty subject matter jurisdiction is subject to implied geographical limitations. In the absence of express limitation, there is no basis for implying geographical limita tions on the Court's jurisdiction other than the necessity of serving the defendant within the Court's geographical jurisdic tion unless leave to serve ex juris is obtained. Secondly, the cause of action was so ambiguously pleaded that it was open to the Trial Judge to hold that the jurisdiction question should be left until the real facts are established.
The Queen v. Wilfrid Nadeau Inc. [1973] F.C. 1045; Oy Nokia Ab v. The Ship "Martha Russ" [1974] I F.C. 410; Antares Shipping Corporation v. The Ship "Capricorn" (not reported, S.C.), discussed.
APPEAL.
COUNSEL:
G. Black, Q.C., and P. J. MacKeigan for
appellant.
D. A. Kerr, Q.C., for respondent.
D. S. McInnes for defendant.
SOLICITORS:
Daley, Black, Moreira & Piercey, Halifax, for appellant.
Stewart, MacKeen & Covert, Halifax, for respondent.
McInnes, Cooper & Robertson, Halifax, for defendant.
The following are the reasons for judgment delivered orally in English by
JACKETT C.J.: This is an appeal from a judg ment of the Trial Division.
On February 20, 1975, the respondent, Santa Maria Shipowning and Trading Company, filed a statement of claim in the Trial Division naming Hawker Industries Limited (hereinafter referred to as "Hawker") and the appellant, Bethlehem Steel Corporation, as defendants.
That statement of claim alleges that the respondent's head office is in Liberia, that its principal place of business is in Bermuda, and that, at relevant times, it was the registered owner of the vessel Santa Maria. It alleges that Hawker is engaged in shipbuilding and repairing and has a place of business in Halifax, and that the appellant is engaged in shipbuilding and repairing and has its head office in the United States. The substan tive allegations of the statement of claim, in so far as they seem to me to be relevant, read as follows:
4. On or about the 5th day of December, 1972, the "SANTA MARIA" sustained severe damage by ice and storm during the course of a voyage in ballast from New York, U.S.A., to Botwood, Newfoundland. The principal damage consisted of loss of the vessel's rudder, leaving her with a fractured rudder stock still in place. The vessel was towed to Halifax where she arrived December 21, 1972. On that date, the Plaintiff entered into an agreement with Hawker pursuant to which the vessel entered Hawker's Halifax drydock for inspection. It was appar ent that the vessel would require a new rudder stock and rudder. The Plaintiff represented by its Classification Society (the American Bureau of Shipping) and the Salvage Associa-
tion, London, on behalf of the vessel's hull underwriters, pre pared certain specifications for the proposed work. The said specifications, which were amended from time to time thereaf ter as a result of further surveys, will be referred to at the trial of this action for their full force and effect. The Plaintiff delivered the said specifications to Hawker and the Plaintiff and Hawker thereupon entered into a contract pursuant to which Hawker undertook to perform the required work.
5. Hawker prepared drawings of the new rudder and rudder stock. Hawker then ordered the forging for the rudder stock from Trenton Steel Company, of Trenton, Nova Scotia. The forging for the rudder stock was sent by Hawker to Bethlehem for machining. The Plaintiff entered into a contract with Bethlehem (which will be referred to at the trial of this action for its full force and effect) for the said machining of the rudder stock, the fabrication of a new rudder, and proper mating of rudder and stock. Said work was completed by Bethlehem on or about April 10th, 1973, and the new rudder and stock, complete with pintles and palm bolts were sent by road transport from Hoboken, New Jersey to Halifax, where they arrived at Hawker's yard on April 13th, 1973.
6. The "SANTA MARIA" (which had been lying idle at Halifax since the date of her arrival) entered Hawker's drydock on April 12th, 1973, and on the arrival at Hawker's yard of the new rudder and rudder stock, Hawker attempted to fit the same into the "SANTA MARIA". As a result of its own negligence (particulars of which are hereafter set out) Hawker was unable to install the rudder, although several attempts were made over the ensuing seven weeks. Eventually on June 1, 1973, the Plaintiff advised Hawker of the cancellation of its contract with Hawker, due to Hawker's negligence and inability to perform the work, and the following day the vessel departed Halifax in tow, with the new rudder and rudder stock on board, for Bethlehem's yard in Hoboken, New Jersey, where she arrived June 5, 1973. The work of installing the rudder and rudder stock was undertaken by Bethlehem and said work was com pleted on June 14, 1973.
7. The Plaintiff says that Bethlehem held itself out to be an expert in the fabrication and machining of rudders and rudder stocks and that the Plaintiff was entitled to and did rely upon the said expertise of Bethlehem.
8. The Plaintiff says that Hawker held itself out to be an expert in the repairing of ships and particularly in the installa tion and proper fitting of rudders and rudder stocks, and that the Plaintiff was entitled to and did rely upon the said expertise of Hawker.
9. The Plaintiff says that Bethlehem failed to exercise the skill and care which it had undertaken to exercise with respect to the machining and fabrication of the said rudder stock and rudder, and was negligent with respect thereto, and as a result of such negligence, supplied the Plaintiff (and/or Hawker) with a rudder and rudder stock which was not properly aligned, and which was not in accordance with the aforesaid plans and specifications, or dimensionaly within the tolerances which are accepted as reasonable in the trade.
10. The Plaintiff says that Hawker failed to exercise the skill and care which it had undertaken to exercise, and was negligent in its attempts to prepare the vessel to receive the new rudder and rudder stock, and was guilty of poor workmanship.....
11. The Plaintiff further says that Hawker supplied labour, materials, and ship repair services which were faulty and deficient to such an extent that the Plaintiff was required to remove the vessel from Hawker's yard and, at substantial additional expense, to have the work performed by Bethlehem in New Jersey ....
12. The Plaintiff claims against the Defendants, jointly and severally for all losses and/or damages arising out of or attributable to the negligence complained of. The Plaintiff's special damages are as follows:
(a) Paid to Bethlehem for drydocking and installing and fitting the rudder and rudder stock, arising directly out of the failure of Hawker to
perform the said work pursuant to contract $ 78,100.00
(b) Paid for towing expenses, Halifax to Hoboken 25,000.00
(c) Running expenses of the vessel during tow
3 days @ $1,700 per day 5,100.00
(d) Loss of Charterparty earnings from May 1, 1973 (when, at the latest, Hawker should have completed the work) until June 14, 1973 (when the work was completed by Bethlehem) plus 3 days for proceeding to the on-hire port, a total of
48 days @ $1,200 per day 57,600.00
(e) Vessel's running expenses for 48 days @
$1,100 per day 52,800.00
(f) 150 tons of fuel @ $30.00 per ton 4,500.00
TOTAL $223,100.00
The Plaintiff claims for judgment against the Defendants, jointly and severally, for its special damages as above, and to have an assessment made thereof, and for general damages, interest in accordance with the practice of This Court, and for cost of these proceedings.
On February 20, 1975, the Trial Division made an ex parte order giving the respondent liberty to serve a notice of the statement of claim on the appellant in the United States. That order was made under Rule 307, which reads in part:
Rule 307. (1) When a defendant, whether a Canadian citizen, British subject or a foreigner, is out of the jurisdiction of the Court and whether in Her Majesty's dominions or in a foreign country, the Court, upon application, supported by affidavit or
other evidence showing that, in the belief of the deponent, the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, may order (Form 5) that a notice of the statement of claim or declaration may be served on the defendant in such place or country or within such limits as the Court thinks fit to direct. (Form 6).'
On April 11, 1975, a notice of motion was filed on behalf of the appellant returnable on April 22, 1975, for an order permitting the appellant "to file a Conditional Appearance with the right to contest the service of the Notice of the Statement of Claim and the jurisdiction of this Court against it". In support of the motion, an affidavit was filed on the same day, reading in part:
2. THAT this action was instituted by the Plaintiff against the Defendants on or about the 20th day of February, 1975;
3. THAT on or about the 18th day of February, 1975, the solicitor for the Plaintiff applied ex parte before the Judge presiding at the Federal Court, Ottawa for an Order to serve a Notice of the Statement of Claim, ex juris, upon the Defend ant, Bethlehem Steel Corporation, at Hoboken, New Jersey, United States of America;
4. THAT I am instructed in this matter by H. M. McCormack, one of the attorneys representing Bethlehem Steel Corporation;
5. THAT I am advised by the said H. M. McCormack, and verily believe, that the service of a Notice of the Statement of Claim was made on some official of Bethlehem Steel Corpora tion between the 20th day of February, 1975 and the present time;
6. THAT the Statement of Claim herein alleges the existence of a contract made between the Plaintiff and the Defendant, Bethlehem Steel Corporation, for the machining of a rudder stock, the fabrication of a new rudder and proper mating of rudder and stock;
7. THAT I have been provided with a copy of the contract apparently referred to in the Statement of Claim dated the 23rd day of January, 1973 in the form of an offer made by Bethlehem Steel Corporation and accepted by the Plaintiff. A copy of the said contract is attached hereto and marked with the letter "A";
8. THAT on its face, the contract is one having been made between Bethlehem Steel Corporation, Hoboken, New Jersey and Santa Maria Shipowning and Trading Co., Hamilton, Bermuda;
9. THAT the only other reference in the Statement of Claim to the defendant, Bethlehem Steel Corporation, is in Paragraphs 7 and 9 where the Plaintiff alleges that Bethlehem Steel Corpora tion held itself out to be an expert in the fabrication and machining of rudders and rudder stocks and that the Plaintiff was entitled to and did rely upon the expertise of Bethlehem. In paragraph 9, the Plaintiff alleges that Bethlehem failed to
' The authority for this Rule is found in section 46(1)(a)(vii) of the Federal Court Act.
exercise the skill and care which it had undertaken to exercise with respect to the machining and fabrication of the said rudder stock and rudder, and was negligent with respect thereto and that as a result of such negligence, supplied the Plaintiff with the rudder and rudder stock which was not properly aligned and which was not in accordance with the plans and specifications, or dimensionally within the tolerances which are accepted as reasonable in the trade;
10. THAT I am informed by the said H. M. McCormack, and verily believe, that Bethlehem Steel Corporation does not do business in any place in Canada;
11. THAT the Federal Court of Canada has no jurisdiction over the Defendant, Bethlehem Steel Corporation, in this matter for the reasons set forth in the foregoing paragraphs hereof. In addition, there has been no breach of contract or any negli gence of the Defendant, Bethlehem Steel Corporation, or its employees, alleged to have occurred within the jurisdiction of this Court;
12. THAT the Defendant, Bethlehem Steel Corporation, seeks to have the service of the Notice of the Statement of Claim against it set aside;
13. THAT apart from the foregoing, the Defendant, Bethlehem Steel Corporation, says that even if service of the Notice of the Statement of Claim was properly allowed, this Court does not have jurisdiction over the claim made against Bethlehem Steel Corporation as the subject matter is not within any of the subjects over which the Federal Court of Canada has jurisdiction.
The Exhibit to that affidavit is in the form of a letter, dated January 23, 1973, from the appellant to the respondent "Attention: Mr. P. A. Margaro- nis", the body of which reads:
Subject: S/S "SANTA MARIA" Gentlemen:
We hereby agree to carry out the following work in accord ance with accepted marine practice, and as set forth in our attached specifications dated January 23, 1973, except as modi fied by the general clause above, for the sum of:
EIGHTY-SEVEN THOUSAND FOUR HUNDRED DOLLARS
($87,400.00)
and to complete same in FIFTY-SIX (56) CALENDAR DAYS.
OR
for the sum of:
NINETY-THREE THOUSAND FOUR HUNDRED DOLLARS
($93,400.00)
and to complete same in FORTY-EIGHT (48) CALENDAR DAYS
DELIVERY: F.O.B. Hoboken Yard, Hoboken, New Jersey.
which letter is endorsed "Authorized to proceed on (48) CALENDAR DAYS BASIS" (apparently signed by Mr. Margaronis) and has attached thereto a document reading:
January 23, 1973
SANTA MARIA SHIPOWNING & TRADING CO.
P.O. Box 501
Hamilton, Bermuda.
SUBJECT: S/S "SANTA MARIA"
FABRICATION OF RUDDER AND MACHINING OF RUDDER STOCK.
Fabricate one (1) rudder in accordance with Bethlehem Hoboken Drawing No. S2968.
Machine rudder in way of palm face, keyway and bore for six (6) palm bolts.
Machine in way of two (2) pintles, boring for taper and machine inner and outer seating surfaces.
Take delivery of Owner-furnished "as forged" rudder stock and vessels existing tiller arm.
Machine stock in accordance with Halifax Shipyards Drawing
No. HD-453, Sheet 3.
Furnish and install bronze sleeve on rudder stock as indicated
on above drawing.
Provide eyebolt at top of stock.
Machine upper end of stock to fit existing tiller and provide, fit
and install key.
Fit palm of stock to mating palm of rudder.
Bore and ream for six (6) palm bolts. Provide and fit six (6) palm bolts and nuts. Provide and fit key in palm.
Provide and fit to rudder two (2) pintles complete with bronze sleeves and nuts.
Rudder to be sandblasted and prime coated.
Palm faces, bore of pintle fits, pintles, palm bolts and machined surfaces of stock to be coated with preservative.
On April 21, 1975, there was filed, on behalf of the respondent, an affidavit reading:
I, HUGH K. SMITH, of Halifax, in the County of Halifax, Province of Nova Scotia, make oath and say as follows:
1. THAT I am the solicitor for the Plaintiff.
2. THAT the Defendant Hawker Industries Limited commenced an action against the Plaintiff on or about the 21st day of August, 1973.
3. THAT the evidence in the action of Hawker Industries Lim ited v. Santa Maria Shipowning and Trading Company S.A. et al. will be common to the evidence in the action herein.
4. THAT Donald A. Kerr, Q.C., of Halifax aforesaid is the solicitor for the Plaintiff Santa Maria Shipowning and Trading Company S.A. in that action brought by Hawker Industries Limited.
5. THAT I have been advised by Mr. Kerr and do verily believe that Mr. Kerr conducted Discovery Examination of one Jeffrey Jordan, Mechanical Superintendent of the Halifax Shipyards for Hawker Industries Limited, on Thursday, April 17, 1975.
6. THAT the Court Reporter who took down the Discovery Examination of Mr. Jordan on April 17, 1975 delivered to me today a true copy of this examination. Attached hereto as Exhibit "A" are a series of questions and answers from that Discovery Examination.
The questions and answers attached to that affida vit indicate that, according to the officer being examined for Hawker in the action by Hawker against the respondent, there was "something wrong" with the rudder or rudder stock supplied by the appellant and that the appellant, in accord ance with shipyard practice, had sent a representa tive to "see what's wrong" and "try to repair it".
On April 21, 1975, an order was delivered orally by the Trial Division reading, in part, as follows:
The statement of claim herein is founded in contract and in tort. In my view it discloses a cause of action, but the allega tions therein should be made more specific. Since no statements of defence have been filed the plaintiff shall file an amended statement of claim, which it has undertaken to do, within 7 days of the date hereof.
I am also of the view that the question of jurisdiction must be predicated upon the facts which will be disputed. The facts should therefore be first determined by the trial judge.
Accordingly the motion is dismissed, as being premature, but the defendant, Bethlehem Steel Corporation, shall have the costs of this motion.
On April 28, 1975, the respondent filed an "Amended Statement of Claim".
On April 28, 1975, the appellant filed a notice of appeal from the Trial Division order of April 21, 1975.
One of the difficulties in connection with the appeal arises from the fact that the Trial Division order that is the subject matter of the appeal is, apparently, not a disposition of the only applica tion written notice of which appears in the record. In this connection, counsel for the appellant and respondent, at the end of the argument of the appeal, filed a document in this Court reading as follows:
AGREEMENT:
1. No appeal was taken against the issuance of the Order for service ex juris by Heald J.
2. Cattanach J. summarily allowed Bethlehem's motion to file Conditional Appearance and thereupon invited counsel to address themselves to the question of the Court's jurisdiction over Bethlehem.
3. Cattanach J. decided that a cause of action was disclosed by the Statement of Claim, as against Bethlehem.
4. Cattanach J. decided that the question of jurisdiction should be determined on the facts as found by the Trial Judge.
This appeal is from the findings set out in 3 and 4 above.
As far as I am aware, the only preliminary method of determining whether a statement of claim dis closes a cause of action against a defendant (apart from seeking an order for the determination of a question of law before trial) is an application to strike out the statement of claim as against the defendant on the ground that it does not disclose a cause of action against the defendant, under Rule 419(1)(a), which reads as follows:
Rule 419. (1) The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as the case may be,
In the circumstances, I assume that the judgment appealed against dismissed an application, made orally by the appellant, to strike out the statement of claim as against the appellant on the ground that it did not disclose a cause of action against the appellant within the jurisdiction of the Trial Divi sion. I propose to deal with the appeal on that assumption with the result that all evidence must be ignored by virtue of Rule 419(2), which reads:
(2) No evidence shall be admissible on an application under paragraph (1)(a).
The appeal must, therefore, turn on the question whether the Trial Division wrongly exercised its discretion as to whether the statement of claim, in its original form, should have been struck out as against the appellant on an application under Rule 419(1)(a). 2
In the first place, it is to be noted that the statement of claim does allege a contract between the appellant and the respondent and a breach thereof by the appellant; and, as was, in effect, conceded by counsel for the appellant, the matter would appear to have been so pleaded as to permit
2 For a discussion of the appropriate approach to such an appeal, see The Queen v. Wilfrid Nadeau Inc. [1973] F.C. 1045.
the proof of facts that would bring the claim against the appellant within section 22(2)(n) of the Federal Court Act, which reads:
22. (2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any claim or question arising out of one or more of the following:
(n) any claim arising out of a contract relating to the construction, repair or equipping of a ship;
What the appellant contends, however (and the only contention really relied on by the appellant during argument in this Court), is that it is clear from the statement of claim that the whole of the contractual cause of action so pleaded is geograph ically situated outside Canada and is, therefore, not within the jurisdiction of a Canadian court and, in particular, is not within the jurisdiction of the Trial Division. Such argument, as I understood it, was based on an implied limitation on the subject matter jurisdiction of a court to subject matter arising within the geographical limits within which the Court can exercise jurisdiction.
Counsel for none of the parties was able to refer us to any authority that tended one way or another on the question whether there is such an implied limitation. Authorities concerning service ex iuris and the recognition of foreign judgments would not, as it seems to me, be of much help on the question although it is worthy of note that this Court in the Martha Russ case 3 made it clear that it was not deciding that appeal on a question of "jurisdiction" to authorize service ex iuris and that the decision of the Supreme Court of Canada in Antares Shipping Corporation v. The Ship "Capricorn" of January 30 last provided for ser vice ex iuris in a case in which the cause of action would not seem to be situate in Canada any more than, on the view taken by the appellant, the cause of action in question here is situate in Canada. (The question of the Court's "jurisdiction" in the latter case would, as I understand it, still seem to be open for consideration.)
3 [1974] 1 F.C. 410.
In the absence of any knowledge of authority directly related to the question, I am not persuad ed that admiralty subject matter jurisdiction is subject to implied geographical limitations. In an admiralty cause (and, as far as I am aware, in any other cause in any court), in the absence of express limitation, there is no basis for implying geograph ical limitations on the Court's jurisdiction other than the necessity of serving the defendant within the Court's geographical jurisdiction unless leave under appropriate authority is obtained to serve ex iuris.
I am not, therefore, persuaded that the state ment of claim here in question should be set aside against the appellant under Rule 419(1)(a) because the contractual cause of action pleaded against the appellant is not within the Trial Divi sion's jurisdiction. For that reason, the appeal should, in my view, be dismissed with costs.
In any event, in my view, even if there is a geographical limitation on the Trial Division's jurisdiction under section 22(2)(n), as contended for by the appellant, I am of opinion that the application was dismissed in a proper exercise of the Court's discretion. The cause of action was so ambiguously pleaded that it would have been open to the respondent to prove a contract that required partial performance in Canada and to prove a breach that was wholly or partly in Canada. That being so, it was, in my view, open to the learned Trial Judge to take the view, which apparently he did, that the question of jurisdiction should be left for decision until, in the ordinary course of events, the real facts are established. For that reason also, I think that the appeal should be dismissed with costs.
* * *
URIE J. concurred.
* * *
HYDE D.J. concurred.
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