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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.
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