T-640-77
Hijos de Romulo Torrents Albert S.A. (Plaintiff)
v.
The Ship Star Blackford and Blandford Shipping
Co. Ltd. and Star Shipping A/S (Defendants)
Trial Division, Mahoney J.—Vancouver, October
17; Ottawa, November 1, 1977.
Practice — Motion to add three proposed plaintiffs —
Plaintiff's statement of claim involving their property, in part
but plaintiff having no interest in it — Proposed plaintiffs'
claims statute-barred — Whether or not proposed plaintiffs
can be added — Federal Court Rules 424, 425, 427 and 1716
— Carriage of Goods by Water Act, R.S.C. 1970, c. C-15,
Article III, Rule 6.
Plaintiff applies, pursuant to Rule 1716, to add three pro
posed plaintiffs to his action ab initio and nunc pro tunc.
Plaintiff's statement of claim asserted a claim in respect of
goods covered by not only its own bill of lading, but also those
of the proposed plaintiffs. The proposed plaintiffs, whose omis
sion from the statement of claim was a genuine mistake, were
statute-barred from asserting their claims.
Held, the application is dismissed. There is no evidence to
conclude that the plaintiff had any interest, as agent or other
wise, in the three bills of lading in which the proposed plaintiffs
were interested, or that the plaintiff acted on their behalf in
commencing the action. The proposed plaintiffs' causes of
action would be advanced for the first time by their addition as
plaintiffs in the action. To permit them to proceed in this
manner would be to deny defendants a defence available if the
causes of action were advanced in fresh proceedings. The
proposed amendment to the statement of claim does not involve
adding or substituting a new cause of action involving Rules
424 and 427, and it cannot be characterized "an amendment to
correct the name of a party" within Rule 425.
Mabro v. Eagle, Star and British Dominions Insurance
Co., Ltd. [1932] 1 K.B. 485, agreed with. Canada Malting
Co. Ltd. v. Burnett Steamships Co. Ltd. [1965] 2 Ex.C.R.
257, distinguished.
APPLICATION.
COUNSEL:
S. Lipetz for plaintiff.
J. W. Perrett for defendants.
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for plaintiff.
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for defendants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This is a motion on behalf of the
plaintiff pursuant to Rule 1716 to add J. Vilaseca
S.A., Miguel y Costas and Miguel S.A. and S.
Torras Domenech S.A. (hereinafter collectively
called the "proposed plaintiffs") to this action ab
initio and nunc pro tunc. The material provisions
of the Rule are paragraphs (1) and (2)'. In the
circumstances, the representation of counsel for
the plaintiff is adequate signification of the con
sent of the proposed plaintiffs as required by para
graph (2).
The following is established by an agreed state
ment of facts:
1. That the Defendant, Star Shipping A/S was the charterer of
The Ship STAR BLACKFORD at all times material to this action.
2. That bills of lading Nos. GRB-7, GRB-8, GRB-9 and
GRB-10, annexed as Schedules 1, 2, 3 and 4 respectively, were
dated on or about the 28th day of December, 1975, in Vancou-
ver, British Columbia.
3. That the goods described in Schedules 1, 2, 3 and 4 were
discharged from the vessel STAR BLACKFORD on February 20,
1976 at Barcelona, Spain.
I Rule 1716. (1) No action shall be defeated by reason of the
misjoinder or nonjoinder of any party; and the Court may in
any action determine the issues or questions in dispute so far
as they affect the rights and interests of the persons who are
parties to the action.
(2) At any stage of an action the Court may, on such
terms as it thinks just and either of its own motion or on
application,
(a) order any person who has been improperly or unneces
sarily made a party or who has for any reason ceased to be
a proper or necessary party, to cease to be a party, or
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated
upon, to be added as a party,
but no person shall be added as a plaintiff without his
consent signified in writing or in such other manner as the
Court may find to be adequate in the circumstances.
4. That the contracts of carriage, part of which is evidenced in
the bills of lading which are Schedules hereto, are subject to the
Carriage of Goods by Water Act (R.S., c. 291) Article III,
Rule 6.
5. That Star Shipping Canada Ltd. of Vancouver, British
Columbia is a wholly owned subsidiary of the Defendant, Star
Shipping A/S and for the purposes of the following paragraph
are one and the same.
6. That Star Shipping (Canada) Ltd. received the documents
which are annexed as Exhibits H, J and L to the Affidavit of
Don Paul Baron, dated June 21st, 1977.
7. That it is agreed between the Plaintiff and the Defendant
Star Shipping A/S that there were no extensions of suit time
granted by the Defendant to the Plaintiff or to the corporations
which are named in the Notice of Motion and which the
Plaintiff seeks to add as Plaintiffs to the action herein ab initio
and nunc pro tunc.
8. That an action was commenced herein on the 15th day of
February, 1977 with Hijos de Romulo Torrents Albert S.A. as
Plaintiff and The Ship STAR BLACKFORD and Blandford Ship
ping Co. Ltd. and Star Shipping A/S as Defendants.
The consignee named in bill of lading No. GRB-7
was the plaintiff. The consignees named in Nos.
GRB-8, 9 and 10 were, respectively, the proposed
plaintiffs.
By letter of July 13, 1976, Star Shipping
(Canada) Limited acknowledged that, by letter of
May 31, it had been given notice of loss in respect
of the goods covered by No. GRB-8, which identi
fied the proposed plaintiff, J. Vilaseca S.A., as
their consignee. By letter of August 31, Star Ship
ping (Canada) Limited acknowledged that, by
letter of July 21, it had been given notice of loss in
respect of the goods covered by No. GRB-9, which
identified the proposed plaintiff, Miguel y Costas
and Miguel S.A., as their consignee. By letter of
July 13, Star Shipping (Canada) Limited acknowl
edged that, by letter of May 28, it had been given
notice of loss in respect of the goods covered by
GRB-10, which identified the proposed plaintiff,
S. Torras Domenech S.A., as their consignee.
Those notices of loss are, respectively, the Exhibits
H, J and L to Baron's affidavit.
The statement of claim, as filed, asserted a
claim on behalf of the plaintiff in respect of loss to
the goods covered by all four bills of lading. In
fact, it had an interest only in the goods covered by
No. GRB-7.
The material provision of Article III, Rule 6 of
the Carriage of Goods by Water Act 2 is:
In any event the carrier and the ship shall be discharged
from all liability in respect of loss or damage unless suit is
brought within one year after delivery of the goods or the date
when the goods should have been delivered.
The effect of the order sought would be to instate
the proposed plaintiffs in an action in respect of
claims which they are barred from now asserting
themselves in new actions.
The amendment to the statement of claim pro
posed does not, of course, involve adding or sub
stituting a new cause of action. I am not, there
fore, concerned with the effect of Rules 424 and
427 on the current validity of the statement of law
by Scrutton L.J. in Mabro v. Eagle, Star and
British Dominions Insurance Company, Limited'
as it bears upon adding a cause of action.
... the Court has always refused to allow a party or a cause of
action to be added where, if it were allowed, the defence of the
Statute of Limitations would be defeated.
Neither, in my view, can what the plaintiff seeks
be characterized as "an amendment to correct the
name of a party" so as to bring it within Rule
425 4 . I am entirely satisfied that the omission of
the proposed plaintiffs from the statement of claim
was a genuine mistake and, further, as a result of
the earlier notices of loss, that the defendant was
neither misled nor given cause for reasonable
2 R.S.C. 1970, c. C-15.
[1932] I K.B. 485 at 487.
4 Rule 424. Where an application to the Court for leave to
make an amendment mentioned in Rules 425, 426 or 427 is
made after any relevant period of limitation current at the
date of commencement of the action has expired, the Court
may, nevertheless, grant such leave in the circumstances
mentioned in that Rule if it seems just to do so.
Rule 425. An amendment to correct the name of a party may
be allowed under Rule 424, notwithstanding that it is alleged
that the effect of the amendment will be to substitute a new
party, if the Court is satisfied that the mistake sought to be
corrected was a genuine mistake and was not misleading or
such as to cause any reasonable doubt as to the identity of
the party intending to sue, or, as the case may be, intended to
be sued.
doubt as to the identity of the parties intending to
sue. That said, where Rule 1716 makes specific
provision for cases of misjoinder and nonjoinder of
parties, it would be a strained application of Rule
425 to characterize a clear case of nonjoinder as a
mistake curable by correction of the name of a
party.
The plaintiff relies on the decision of Wells
D.J.A. in Canada Malting Co. Limited v. Burnett
Steamship Co. Limited 5 as distinguishing the law
applicable in this Court in actions on bills of lading
from the Mabro rule. In that case, the action had
been commenced by the consignor of cargo and the
consignee was added as a plaintiff after the limita
tion period had expired. It was found, on the
material before the Court, that the consignor had
taken the bill of lading as agent and forwarder for
the account and at the risk of the consignee and
that, accordingly, the addition of the principal as a
plaintiff neither gave rise to a new cause of action
nor deprived the defendant of any defence not
already comprised or available in the action com
menced by the agent.
Here, there is no evidence upon which to con
clude that the plaintiff had any interest, as agent
or otherwise, in the three bills of lading in which
the proposed plaintiffs were severally interested
nor that, in commencing the action, the plaintiff
acted on their behalf and that, therefore, the pro
posed plaintiffs, if added, would simply be assert
ing causes of action that the plaintiff had already
asserted for them. On the contrary, the plaintiff, it
appears, has no cause of action in respect of bills
of lading GRB-8, 9 and 10. The proposed plain
tiffs' causes of action would be advanced for the
first time by their addition as plaintiffs in this
action. The effect of permitting them to proceed in
this manner would be to deny the defendants a
defence available if the causes of action were
advanced in fresh proceedings. I have, with consid-
5 [1965] 2 Ex.C.R. 257.
erable reluctance in the circumstances, concluded
that that cannot be allowed.
ORDER
The application is dismissed with costs.
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.