MARITIME LAW |
Practice |
Early Recovered Resources Inc. v. Gulf Log Salvage Co-operative Assn.
T-588-00
2003 FCT 549, Hargrave P.
2/5/03
12 pp.
In context of action for salvage of unmarked logs, picked up by plaintiff, application for addition of two entities, owners of logs, to be added as defendants or interveners--Proper to add Coast Forest and Lumber Association, Independent Timber Marketing Association (Associations) as defendants (see The Elton, [1891] P. 265)--As Federal Court of Appeal ([2003] 3 F.C. 447) has already found record herein deficient, hard to conceive claim for salvage could be properly decided by Court without participation of owners of salvaged property-- Furthermore, under International Convention on Salvage, 1989 (Canada Shipping Act, 2001, Sch. 3), arts. 13, 14, only owner of salvaged property can be required to pay salvage award--Owners of salvaged property clearly coming within Federal Court Rules, 1998, r. 104(1)(b) (Court may order person who ought to have been joined as party or whose presence before Court necessary to ensure that all matters in dispute in proceeding may be effectually and completely determined be added as party)--Pocketbook, directly affected tests: Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125 (C.A.); Havana House Cigar & Tobacco Merchants Ltd. v. Jane Doe (1998), 80 C.P.R. (3d) 443 (F.C.T.D.)--Someone who has right to be party, as necessary party, ought not to have to rely upon someone else to vicariously defend his or her interests: Havana House-- General rule that plaintiff to choose defendant applicable unless would be impossible for Court to effectually, completely adjudicate upon present salvage issue, or unless special or exceptional circumstances (such as need to have owner of salved property before Court, in order to effectually and completely determine salvage aspect of proceeding) to justify departure from general rule: see Ferguson v. Arctic Transportation Ltd., [1996] 1 F.C. 771 (T.D.)--Line of cases where Indian bands or other representatives of Aboriginal individuals rejected as parties seeking to uphold interest of members (see Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans) (2002), 299 N.R. 241 (F.C.A.); Benoit v. Canada (2001), 272 N.R. 169 (F.C.A.)) distingui-shed as individuals therein held treaty rights and thus their umbrella societies not necessarily parties within Federal Court Rules; here, any one of number of forest companies may be owner of one or more of logs, thus reasoning underlying above-mentioned cases cannot apply; here, log owners doing all they can to protect their positions in salvage action, including ability of Associations to fill factual vacuum--Thus need to have additional defendants to effectually and completely determine action--Style of cause established accordingly--Federal Court Rules, 1998, SOR/98-106, r. 104(1)(b)--International Convention on Salvage, 1989, being Sch. 3 of the Canada Shipping Act, 2001, S.C. 2001, c. 26, arts. 13, 14.