T-323-82
Ocean Cape Compagnia Naviera S.A. (Plaintiff)
v.
Noranda Sales Corporation Ltd., Noranda Sales
Corporation of Canada Ltd. and Balance of Sub-
Freights Owing on a Cargo of Fluorspar Carried
From Tampico to Dordrecht on Board the Ioannis
Under Bill of Lading Dated August 26, 1981
(Defendants)
Trial Division, Walsh J.—Montreal, April 19;
Ottawa, April 23, 1982.
Practice — Defendants move for service ex juris on trustees
in bankruptcy of Clover Trading Company Inc. of motion for
order of interpleader to substitute Clover Trading Company
Inc. for defendants — Defendants do not dispute amount due
for balance of freight resulting from sub-charter by them from
Clover Trading Company Inc. which had time-chartered vessel
from plaintiff — Possible dispute between Clover Trading
Company Inc. and plaintiff as to which should receive payment
but former has neither sought to intervene pursuant to Rule
1010 nor consented to payment to plaintiff — Rule 1716(2)(6)
permits Court to order person whose presence before Court is
necessary to ensure that all matters in dispute may be com
pletely and effectually adjudicated upon to be added as party
— No clear indication that Clover Trading Company Inc.'s
presence necessary, or that it is disputing plaintiff's right to
claim freight from defendants — No provision in Rules for
introducing new defendant against wishes of plaintiff and
without consent of new defendant — Motion for service ex
furls allowed — Federal Court Rules 1010, 1716(2)(b).
MOTION.
COUNSEL:
T. Bishop for plaintiff.
G. P. Barry for defendants.
SOLICITORS:
Brisset, Bishop, Davidson & Davis, Montreal,
for plaintiff.
McMaster, Meighen, Montreal, for defend
ants.
The following are the reasons for order ren
dered in English by
WALSH J.: The present motion by defendants is
for service ex juris on Sven Rosenmeyer Paulsen,
Henrik Andersen and Folmer Teilmann in their
capacity as trustees of Clover Trading Company
Inc. in bankruptcy at the offices of Reumert &
Partners, 26 Bredgade, Denmark 1260, Copenha-
gen or any other place in Denmark at which any of
them may be found, or alternatively that accept
ance of such service duly authenticated by the
Canadian consular authorities avail in lieu of such
service, of a motion for an order of interpleader
which would substitute the said Clover Trading
Company Inc. in bankruptcy for defendants.
The situation arises out of a claim by plaintiff
for the balance of freight owing by defendants
resulting from a sub-charter by them from the said
Clover Trading Company Inc. which had time-
chartered the vessel from plaintiff. Defendants do
not dispute the amount due and in fact in the
motion which they seek leave to serve ex juris seek
permission to tender the amount of $30,163.14
(the Canadian dollar equivalent of $25,347.18
U.S.) into Court. What they seek to avoid is being
placed in double jeopardy and after having paid
the amount, which they admit is due, to plaintiff
then having to face a claim for it from the said
Clover Trading Company Inc., there being a pos
sible dispute between plaintiff and that company
as to which should receive the said payment.
The problem arises because there is no provision
in the Rules of this Court for such a motion, which
would have the effect of introducing a new defend
ant, Clover Trading Company Inc. in bankruptcy,
against the wishes of plaintiff in place of defend
ants whom plaintiff has chosen to sue, and of
introducing said Clover Trading Company Inc. as
a defendant without any consent by it to this.
Defendants even seek that plaintiff introduce an
amended paragraph to its statement of claim as a
result of this change of defendants, although they
also seek an order that no payment be made out of
Court of the monies they propose to deposit until
the Court has determined the issue between plain
tiff and said Clover Trading Company Inc.
It appears doubtful whether such a motion could
be granted but this is not a matter for determina
tion in the present motion for service ex juris, the
real issue being whether permission should be
given for service of such a motion which is not
provided for in the Rules of this Court and may
not succeed, however useful the end sought to be
attained may be.
Rule 1010 provides for the intervention in
Admiralty matters of a person having an interest
in the property or money but who is not a defend
ant. In the present case, Clover Trading Company
Inc. in bankruptcy not only has not sought to
intervene, but has not replied to a letter of Febru-
ary 10, 1982 from plaintiff inviting them to inter
vene or alternatively to consent to the money due
being paid by defendants to plaintiff so that the
action may be discontinued, nor to a telex of
March 17, 1982 requiring them to intervene within
7 days if they wish to protect their interests.
Defendants do not wish to take the chance,
however, of assuming that said Clover Trading
Company Inc. will make no claim against them,
and paying the amount due to plaintiff. The ques
tion to be argued on the motion will therefore be
whether a party can be forced to become a party to
an action against its wishes.
Rule 1716(2)(b) does permit the Court to order
a person whose presence before the Court is neces
sary to ensure that all matters in dispute in the
action may be completely and effectually
adjudicated upon to be added as a party, but this
would not seem to go so far as to permit him to be
substituted for another party, and moreover there
appears to be no clear indication that Clover Trad
ing Company Inc.'s presence is necessary, or that
they are disputing plaintiff's right to claim the
freight from defendants. These are, however, mat-
ters which would have to be decided on the hearing
of the motion.
Defendants hope that the mere service of the
motion on the trustees in bankruptcy of the said
Clover Trading Company Inc. will have the effect
of making them take a positive decision as to
whether they have any claim for the money to be
deposited or consent to its being paid to plaintiff,
thereby terminating the proceedings, a useful
objective.
Under the unusual circumstances, I will consent
to the order for service ex juris of the motion;
costs to be in the event of same.
ORDER
Defendants may serve ex juris on Sven Rosen-
meyer Paulsen, Henrik Andersen and Folmer Teil-
mann in their capacity as trustees in bankruptcy of
Clover Trading Company Inc. at the offices of
Reumert & Partners, 26 Bredgade, Denmark
1260, Copenhagen or such other place in Denmark
where any of them may be found, or if service is
accepted duly authenticated by the Canadian con
sular authorities to avail in lieu of service, of the
notice of motion for an order of interpleader and
accompanying affidavit annexed to the present
motion, the serving officer to insert a date for
presentation of the said motion on the first regular
motion day in Montreal not less than 28 days nor
more than 35 days from the date of said service;
costs in the event.
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.