Ex. C.R.] EXCHEQUER COURT OF CANADA 81 ONTARIO ADMIRALTY DISTRICT 1936 BETWEEN : Nov.16 & 19. BRUCE LINDSAY BROTHERS YLAINTIFF D ' e — c. 2 . LIMITED AND THE BARGE BRUCE HUDSON,) HER CARGO AND FREIGHT j DEFENDANT; AND CHARLES LEVENS, ET AL PLAINTIFFS AND THE BARGE BRUCE HUDSON` AND LLOYD REFINERIES LIM- '• DEFENDANTS. ITED Admiralty—Practice—Salvage—Joinder of action in rem and action in personam. Held: That actions for the recovery of salvage may be either in rem or in personam. 2. That an action for recovery of salvage must be continued in the form in which it is begun. MOTION to have defendant Lloyd Refineries Limited struck out as being improperly joined. The motion was heard before His Honour Frank M. Field, District Judge in Admiralty for the Ontario Admiralty District, at Toronto. H. E. Langford and Frank Wilkinson for plaintiff, Bruce Lindsay Brothers Limited. H. H. Harris and K. B. MacLaren for plaintiffs, Charles Levens et al. Francis King, K.C., for all defendants. The facts and questions of law raised are stated in the reasons for judgment. FIELD D.J.A. now (December 2, 1936) delivered the following judgment: Motion returnable November 16, 1936, and resumed November 19, 1936 (when judgment was reserved), for an order amending all proceedings in the action, begun in the Quebec Admiralty District, subsequently consolidated 38405-2a
82 EXCHEQUER COURT OF CANADA [1937 1936 with the action begun in the Ontario Admiralty District, Bav striking out Lloyd Refineries Limited as one of the deB. f endants, on the ground that, as against Lloyd Refineries ET AL. Limited (owners of the barge Bruce Hudson), the action c. , v ,„ . us being in personam, it is improperly joined with the action LEVENs in rem against the barge Bruce Hudson. ET AL. Mr. King relies solely on Atlantic Coast Steamship Com- Fseld D.J.A. pany v. Montreal Transportation Company Limited et al (1). I do not regard it as conclusive. It will be found on reading that reported case, the observation of the late Mr. Justice Cassels as to joining of claims in rem and in personam in one action are not essential to his decision, but are obiter dicta. That was a towage claim; these are salvage claims. The first action for an unstated sum, was begun as an action in rem in the Ontario Admiralty District, on November 18, 1935, for salvage services in Lake Ontario, on the 16th and 17th November, 1935, rendered by SS. Brulin, her master and crew. Seized at Port Weller, Ontario, November 18, 1935, by the sheriff of Lincoln on the Admiralty Registrar's telegram, the Bruce Hudson was released on bail of $15,000. $6,500 was on July 20, 1936, paid into Court. Opportunity arising through defendant Barge Bruce Hudson mooring at Amherst Wharf at Pointe aux Trembles on April 27, 1936, in Montreal Harbour, the plaintiffs in the second actionclaiming $2,950 against the Bruce Hudson in rem and against her owners Lloyd Refineries Limited in personam, Lloyd Refineries Limited filed a bond for $3,400 and thereupon the defendant barge was released. Upon the application of all the defendants both actions were consolidated and ordered to be brought to trial as one action, by my order of 21st May, 1936. To the statement of claim delivered by the solicitors for Bruce Lindsay Brothers Limited on the 10th January, 1936, a statement of defence was delivered in the first action on 31st January, 1936. No pleadings have been delivered in the second • action. The Honourable Mr. Justice Demers, District Judge in Admiralty, Quebec Admiralty District, on 5th May, 1936, on application of defendant& solicitors, ordered that the action be tried at Toronto and the record be transmitted to the Toronto Registry of this Court on its Admiralty side. (1) (1909) 12 Ex. C.R. 429 at 432.
Ex. C.R.] EXCHEQUER COURT OF CANADA sa There have been several applications regarding trial of 1936 the consolidated actions, mainly at the instance of solicitors Br c for plaintiffs Charles Levens et al, and one of these by B$ s DïTYo. defendants' solicitors resulting in the order herein of July ET AL. • 14, 1936, fixing date of trial as November 30, 1936. On the Cana LEs 16th November, 1936, the trial was postponed to December LEVENB ET AL. 15, 1936. — Since the case of Atlantic Coast Steamship Company v. FieldD:JA. Montreal Transportation Company Limited et al (supra) was decided on appeal from the Honourable Mr. Justice Hodgins (then L.J.A., Toronto Admiralty District) twenty- eight years ago, the general trend of practice and judicial sanction in all Courts of Justice has been towards one trial of claims arising out of the same circumstances. I do not think. it would be just at this stage to grant the application. Rule 228 governing Admiralty Practice (as found in Audette's Practice, Exchequer Court of Canada, 1st Ed., 1895), provides: In all cases not provided for by these rules, the practice for the time being in force in respect to Admiralty proceedings in the High Court of Justice in England shall be followed. Rule 29 is in these terms: Any number of persons having interests of the same nature arising out of the same matter, may be joined in the same .action whether as plaintiffs or as defendants. Rules 33 and 34 relating to " Consolidation of Actions " are also in point. An action in personam for alleged salvage services rendered to ship, freight and cargo is not prima facie irregular. The Elton (1). Actions for salvage may be either in rem or in personam. The Hope (2); The Meg Merrilies (3); The Rapid (4). The action when it is once commenced either in rem or in personam, must be continued in the form in which it is begun and cannot 'be changed. The Hope (5) ; Humphreys v. Edwards (6) . I am indebted to the diligence of Mr. Harris for his very complete memorandum of the proceedings in the Quebec Admiralty District, filed with his memorandum of authorities on this application. He contends in the former that (1) (1891) P. 265. (4) (1838) 3 Hagg. 419. (2) (1801) 3 C. Rob. 215. (5) (1838-42) .1 W. Rob. 154. (3) (1837) 3 Hagg. 346. (6) (1875) 45 L.J. Ch. 112. 38405-2§a
84 EXCHEQUER COURT OF CANADA [ 1937 1936 the owners of the Brulin had no mandate to act on behalf BRUCE of the crew, and that the action he has taken on behalf of LINDSAY BROS. LTD. his clients in the Quebec Admiralty District has been fully ET AL. v. justified in the form in which it was taken and continued. CHARLES He rites A. L. Smith and Chinook v. Ontario Gravel LEVENS Freighting Company (1) ; Gilmore v. The Marjorie (2) ; ET AL. The Cella (3) ; The Dictator (4) ; The Gemma (5), and Field DJA. Roscoe's Admiralty Practice p. 33, and generally contends that the progress of this litigation to date of this motion (November 16, 1936) without objection heretofore to the form in which the action of Levens et al was instituted, now precludes granting of the application to dismiss Lloyd , Refineries from the litigation. In this view I agree, and therefore dismiss the motion, costs in the cause. Judgment accordingly.
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