Shell Canada Energy v. General MPP Carriers

Shell Canada Energy v. General MPP Carriers

On the filing date the claim was properly instituted as an in rem action only under Rule 477; the court could not, by ex parte order, convert that to an in personam proceeding or validate personal service on Wisdom GmbH in Germany after the limitation period; Wisdom GmbH disclosed a prima facie case under Rule 399 so the September 13, 2010 order and subsequent service were set aside; plaintiffs may not add Wisdom GmbH as a personal defendant after the limitation period under Rules 75‑77 because that would cause irreparable prejudice and is not a mere name correction.

Citation
2011 FC 217
Parties
Plaintiff: SHELL CANADA ENERGY; Plaintiff: VATANA PHAISAL ENGINEERING CO. LTD.; Plaintiff: BOUSTEAD INTERNATIONAL HEATERS LTD.; Defendant: GENERAL MPP CARRIERS; Defendant: U‑SHIP MARITIME SERVICES INC.; Defendant: THE SHIP “SCL THUN”; Defendant: THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP “SCL THUN”; Defendant: THE SHIP “WISDOM”; Defendant: THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP “WISDOM”; Defendant: WISDOM GMBH & CO. KG
Court
Federal Court
Jurisdiction
Canada
Judgment Date
24 February 2011
Procedural Posture
Admiralty Action in Rem and in Personam / Motions
Outcome
Wisdom GmbH's motion allowed; ex parte order dated September 13, 2010 set aside; service of the amended statement of claim effected on or about September 22, 2010 set aside; plaintiffs' motion to amend dismissed.
Legal Topics
Service of Process, In Rem Vs in Personam, Amendment of Pleadings, Setting Aside Ex Parte Orders, Limitation Periods, Costs
Source Language
English
Admiralty and Maritime Law Civil Procedure Conflict of Laws (service Abroad) Service of Process In Rem Vs in Personam Amendment of Pleadings Setting Aside Ex Parte Orders Limitation Periods +1 more

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Parties

SHELL CANADA ENERGY

Plaintiff

VATANA PHAISAL ENGINEERING CO. LTD.

Plaintiff

BOUSTEAD INTERNATIONAL HEATERS LTD.

Plaintiff

GENERAL MPP CARRIERS

Defendant

U‑SHIP MARITIME SERVICES INC.

Defendant

THE SHIP “SCL THUN”

Defendant

THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP “SCL THUN”

Defendant

THE SHIP “WISDOM”

Defendant

THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP “WISDOM”

Defendant

WISDOM GMBH & CO. KG

Defendant

Procedural Posture

Admiralty Action in Rem and in Personam / Motions

Legal Issues

  1. 1 Whether the statement of claim as filed within the limitation period instituted an in rem or in personam action against Wisdom GmbH
  2. 2 Whether the ex parte order of September 13, 2010 validly authorized personal service on Wisdom GmbH in Germany
  3. 3 Whether the September 22, 2010 service on Wisdom GmbH was valid

Ratio Decidendi

On the filing date the claim was properly instituted as an in rem action only under Rule 477; the court could not, by ex parte order, convert that to an in personam proceeding or validate personal service on Wisdom GmbH in Germany after the limitation period; Wisdom GmbH disclosed a prima facie case under Rule 399 so the September 13, 2010 order and subsequent service were set aside; plaintiffs may not add Wisdom GmbH as a personal defendant after the limitation period under Rules 75‑77 because that would cause irreparable prejudice and is not a mere name correction.

Court Disposition

Wisdom GmbH's motion allowed; ex parte order dated September 13, 2010 set aside; service of the amended statement of claim effected on or about September 22, 2010 set aside; plaintiffs' motion to amend dismissed.

Orders

  • Order dated September 13, 2010 set aside
  • Service of the amended statement of claim effected on or about September 22, 2010 set aside