T-2163-80
Atlantic Sandblasting & Coatings Inc. (Plaintiff)
v.
Marine Industries Limited, Gulf Oil Canada Lim
ited and the Ship Gulf MacKenzie (Defendants)
Trial Division, Jerome A.C.J.—Toronto, February
8; Ottawa, March 3, 1982.
Practice — Motion to strike pleadings — Contract for
repair of ship — Plaintiff claims compensation for loss result
ing from performance of extra work not disclosed in plans and
specifications — No allegations in statement of claim that
owners involved in negotiation of contract, or that plaintiff
sought payment from ship or its owners, or that ship-owners
induced performance of service — Whether statement of claim
discloses cause of action in rem — Whether cause of action, if
any, within jurisdiction of Court — Action against ship-
owners to be determined under ordinary laws of negligence, not
under any Act of Parliament or under Canadian maritime law
— S. 22(2)(n) of Act not applicable as contractual involvement
of owners not alleged — S. 22(2)(m) not applicable as claim
not a claim for services — No action in rem — Motion granted
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 22(1),
( 2 ) (m), (n).
MOTION.
COUNSEL:
G. R. Strathy for plaintiff.
Edouard Baudry for defendant Marine
Industries Limited.
David I. L. Hamer for defendants Gulf Oil
Canada Limited and the ship Gulf MacKen-
zie.
SOLICITORS:
McTaggart, Stone, Winters & Herridge,
Toronto, for plaintiff.
Lavery, O'Brien, Montreal, for defendant
Marine Industries Limited.
McCarthy & McCarthy, Toronto, for defend
ants Gulf Oil Canada Limited and the ship
Gulf MacKenzie.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application on behalf of
the defendants Gulf Oil Canada Limited and the
ship Gulf MacKenzie for an order striking out the
statement of claim, came on before me at Toronto,
on February 8, 1982.
It is the defendants' submission that the state
ment of claim discloses no cause of action in rem
and in any event, discloses no cause of action
which falls within the jurisdiction of this Court.
The plaintiff claims damages from all defend
ants in an amount of $44,775, which it alleges is a
loss suffered by the plaintiff under a contract to
repair the defendants' ship the Gulf MacKenzie.
All negotiations for the contract were carried on
between the plaintiff and the defendant Marine
Industries Limited. The terms of the contract were
negotiated entirely with that defendant and it was
that defendant which paid the plaintiff upon the
conclusion of the work. There is no allegation that
the owners of the vessel were in any way involved
in negotiation of the contract or authorization of
the work. There is no allegation in the statement of
claim that the plaintiff in entering into the con
tract was looking to the ship or the owners for
payment, nor is there an allegation that the ship-
owners in any way induced the performance of
service upon the vessel so as to gain unjust enrich
ment therefrom. The statement of claim, in para
graphs 1 to 8, outlines the events which brought
about the contract between the plaintiff and the
defendant Marine Industries Limited. Paragraphs
9 to 15 are as follows:
9. Shortly thereafter, the Plaintiff commenced work on the
vessel and in the course thereof discovered that the complete
sandblasting and painting of the vessel's cargo holds involved
an additional 7,500 square feet of cargo hold surface which was
not disclosed by the plans and specifications attached to
M.I.L.'s request for quotation.
10. The Plaintiff thereupon advised the Defendants, or their
agents and representatives, of the extra work involved and
requested that M.I.L. increase the contract price by $44,775.00
to reflect the increased work involved, but M.I.L. has, to the
date hereof, refused to do so.
11. The Plaintiff has completed the sandblasting and painting
of all the cargo holds of the vessel and as a result of the extra
work performed by the Plaintiff, which was not disclosed in the
Defendants' plans and specifications, the Plaintiff has sustained
loss, damage and expense in the amount of $44,775.00.
12. The Plaintiff says that its said loss, damage and expense
was caused by the breach of contract of the Defendant M.I.L.
in that it failed to supply the Plaintiff with plans and specifica
tions which accurately indicated the work to be performed
pursuant to the contract.
13. In the alternative, M.I.L. and Gulf negligently misrepre
sented to the Plaintiff the work to be performed.
14. In the further alternative, the Plaintiff says that the
Defendants have been unjustly enriched by the Plaintiff's work
and the Plaintiff claims compensation on the basis of quantum
meruit.
15. The Plaintiff therefore claims:
(a) damages in the amount of $44,775.00;
(b) in the alternative, damages assessed on a quantum meruit
basis;
(c) interest at the commercial rate from the 1st day of
August, 1978 to the date of Judgment or payment;
(d) its costs of this action; and
(e) such further and other relief as to this Honourable Court
seems just.
Whatever may be the nature of the claim against
the defendant Marine Industries Limited, it is
absolutely clear that this action against the
defendant owners lies solely in negligence. It falls,
therefore, to be determined under the ordinary
laws of negligence and not under any Act of the
Parliament of Canada or under "Canadian mari
time law" as that phrase is used in subsection
22(1) of the Federal Court Act'. Counsel are
agreed that the only possibility of inclusion in the
specific paragraphs of section 22 are in paragraphs
(m) and (n), as follows:
22....
(2) Without limiting the generality of subsection (1), it is
hereby declared for greater certainty that the Trial Division has
jurisdiction with respect to any claim or question arising out of
one or more of the following:
(m) any claim in respect of goods, materials or services
wherever supplied to a ship for her operation or maintenance
including, without restricting the generality of the foregoing,
claims in respect of stevedoring and lighterage;
(n) any claim arising out of a contract relating to the
construction, repair or equipping of a ship;
I quickly set aside paragraph 22(2)(n) since there
is no allegation of any contractual involvement on
the part of the owners. The question of paragraph
' R.S.C. 1970 (2nd Supp.), c. 10, as amended by S.C.
1973-74, c. 17, s. 8; S.C. 1974-75-76, c. 18, s. 9.
(m) would be more difficult if we were dealing
with a claim for the cost of repairs on the basis of
prima facie liability of the owner or of the ship,
but here the action seeks damages to compensate
the plaintiff for a loss which the plaintiff attributes
to inadequate plans or specifications provided
through, I assume, negligence on the part of the
ship-owners. It is not, therefore, a claim for ser
vices as I understand the language in paragraph
22(2)(m).
I am, therefore, unable to find any basis upon
which the plaintiff can maintain an action in rem
and if an action does lie against the owners in
negligence, I see no aspect of it which brings it
within the jurisdiction of the Federal Court of
Canada.
Accordingly, an order will go striking out all
references in the statement of claim to the defend
ants Gulf Oil Canada Limited and the ship Gulf
MacKenzie. These defendants are entitled to their
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.