T-457-88
Newfoundland Processing Limited (Plaintiff)
v.
The Owners and all Others Interested in the Ship
"South Angela" (Defendants)
INDEXED AS: NEWFOUNDLAND PROCESSING LTD. v. SOUTH
ANGELA (THE) (T.D.)
Trial Division, Cullen J.—Halifax, July 11;
Ottawa, July 13, 1989.
Maritime law — Practice — Actions in rem and in perso-
nam — Application to amend statement of claim in action in
rem — Amendment seeking to plead Canada Shipping Act ss.
661 and 662 wherein strict liability for ship owner established
for discharge of pollutant — Strict liability provisions avail
able only where action in personam — Strict liability cannot
attach to ship herein as proceeding in rem based on nuisance
and negligence — Difference between actions in rem and in
personam explained — Application to amend dismissed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Shipping Act, R.S.C., 1985, c. S-9, ss. 661, 662.
Canada Shipping Act, R.S.C. 1970, c. S-9, ss. 734 (as
added by R.S.C. 1970 (2nd Supp.), c. 27, s. 3(2); S.C.
1987, c. 7, s. 81), 735 (as am. idem).
Federal Court Rules, C.R.C., c. 663, R. 420.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Broadmayne (1916), 13 Asp. Mar. Law Cas. 356
(C.A.).
AUTHORS CITED
Thomas, D. R. Maritime Liens Vol. 14 British Shipping
Laws, London: Stevens & Sons, 1980.
COUNSEL:
Ian C. Wallace for plaintiff.
John R. Sinnott for defendants.
SOLICITORS:
Stirling, Ryan, St. John's, Newfoundand, for
plaintiff.
Lewis, Sinnott & Heneghan, St. John's, New-
foundland, for defendants.
The following are the reasons for order ren
dered in English by
CULLEN J.: This is an application by the plain
tiff for an order pursuant to Rule 420 of the
Federal Court Rules [C.R.C., c. 663] to amend
and file an amended statement of claim in the
within action. Prior to the hearing, counsel for the
defendants consented to the amendments sought to
paragraphs 2, 3, 4, 5, 6 and 7 of the statement of
claim. The only amendment in dispute was para
graph 9 which reads as follows:
9. In the further alternative, the plaintiff pleads Sections 661
and 662 of the Canada Shipping Act, 1985, R.S. Chapter
S-9 wherein the strict liability for the owner of the defen
dant is established for the discharge of a pollutant without
the necessary proof of negligence.
This is an action in rem and the style of cause
leaves no room for doubt on that issue. Certainly,
personal liability can flow if the plaintiff secures
judgment, e.g. if successful to the extent of one
million dollars, and the judgment is able to secure
only $500,000, then personal liability flows to the
extent of $500,000. However, the Canada Ship
ping Act [R.S.C., 1985, c. S-9] gives an additional
benefit if seeking personal liability, namely the
sections quoted in paragraph 9 above (or probably
sections 734 [R.S.C. 1970, c. S-9 (as added by
R.S.C. 1970 (2nd Supp.), c. 27, s. 3(2); S.C. 1987,
c. 7, s. 81)] and 735 [as am. idem] of the 1970
revision) but the section is only available in an in
personam action. That strict liability cannot
attach to the ship in this action, an in rem proceed
ing brought on the basis of nuisance and
negligence.
It is also not open to the plaintiff under Rule
420 to add a defendant by way of joinder. Counsel
for the plaintiff sought this relief in argument but
had not filed any motion to that effect. Whether it
is open to the plaintiff to move a further motion to
add a party or parties by way of joinder or to bring
another action is something that may be con
sidered appropriate by the plaintiff and deter
mined before another judge. The plaintiff is not
prejudiced if it'sccks these alternatives.
Certainly, there is a difference between an
action in rem and an action in personam. D.R.
Thomas, Maritime Liens Vol. 14 (1980) at page
39:
The action in rem, being a proceeding against a res and
whereunder the res may be appropriated to the satisfaction of
the plaintiff's claim, is patently distinct from an action in
personam. The latter is a proceeding inter partes founded on
personal service and, if successful, leading to a judgment
against the person of the defendant. Under the action in rem no
direct demand is made against the owner of the res personally
and this continues to be the case notwithstanding the form of
the modern writ of summons in rem. The action in rem "... is
an action in which the owners may take part, if they think
proper, in defence of their property, but whether or not they
will do so is a matter for them to decide, and if they do not
decide to make themselves parties to the suit in order to defend
their property, no personal liability can be established against
them in that action" (The Burns [1907] P. 137 (C.A.), per
Fletcher Moulton L.J. at p. 149).
The material difference which exists is capable of manifesting
itself in various ways. Thus, on an issue of statutory construc
tion, legislative restrictions placed upon the liability of a person
are not necessarily construed as being of equal application to a
proceeding against the property of that person. (The Longford
(1889) 14 P.D. 34 (C.A.); The Burns [supra].)
The distinction between an action in rem and an action in
personam is therefore a matter of substance and not of mere
form. (The City of Mecca (1881) 6 P.D. 106, per Lush J. at p.
116.)
Here today, the legislation makes an owner
responsible for spills of the ship without proof of
negligence. That legislation does not apply to
action against the ship, and absolute liability with
out fault must be strictly construed.
And finally, The Broadmayne (1916), 13 Asp.
Mar. Law Cas. 356 (C.A.). In the above-men
tioned case, this ship was requisitioned one day
before war was declared in 1914. After this there
was an incident and proceedings against the ship.
The actual owners appeared. There was a stay
because of the requisition but the plaintiff had the
owner of the ship in Court. At page 361, Bankes,
L.J. stated:
Two questions arise for decision in this appeal: first, the effect
upon an action in rem in the Admiralty Division of the appear
ance in the action of the owner of the res, and the giving by him
of bail or an equivalent undertaking; and, secondly, the position
with regard to liability to arrest of a requisitioned vessel against
which an action in rem has been brought. In my opinion an
action which has been commenced as an action in rem contin
ues until its termination as an action in rem unless it undergoes
some alteration in its character by amendment by order of the
court or under the rules of court. It is, in my opinion, a mistake
to say that the action changes its character and ceases to be an
action in rem and becomes an action in personam when the
owner of the res appears and gives bail. It is no doubt true that
when this is done the action, so far as its special characteristic
as an action in rem is concerned, has served its purposes, or
possibly its chief purpose, when the owner of the res has been
induced by reason of the arrest, or fear of arrest, of the vessel to
enter an appearance and to give bail in order to obtain the
release, or avoid the seizure, of his vessel. It is also true that
when once the owner of the res has appeared the plaintiff has
the advantage of being able in case of necessity to take his
property in satisfaction of the judgment in addition to the bail.
These consequences, however, are, in my opinion, incidents
which arise only in the course of the action in rem, which add
to its value, but which in no way alter or deprive it of its special
character.
The position is, I think, quite clearly indicated in the passage
from Clerk's Praxis Curiae Admiralitatie, cited with approval
by Jeune, J. in The Dictator (sup.) where the writer says that
after appearance the case proceeds ut in action instituta
contra personam debitoris—that is to say, that action is to
proceed as if, but only as if, it was an action in personam. The
advantage of the action being an action in rem still remains, in
the sense that, should the exceptional occasion arise, the court
in a proper case would no doubt still have jurisdiction to order
the arrest of the vessel. [Emphasis added.]
For the reasons stated, the plaintiffs application
to amend or add paragraph 9 of its Statement of
Claim is dismissed.
COSTS
Both counsel presented argument on the subject
of costs, and both gave cogent reasons why the
other should be liable for costs in any event of the
cause. The defendants were a little slow off the
mark in consenting to some seven amendments and
other deletions, but certainly the plaintiff had time
to withdraw the motion and deal with paragraph 9
on the regular motion day in September. The
plaintiff had some three and a half months to
amend without leave, and the amendment sought
to paragraph 9 did not arise from discovery. On
balance it seems to me that costs should be in the
cause.
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.