MARITIME LAW |
Practice |
Pantainer Ltd. v. 996660 Ontario Ltd.
T-231-99
Teitelbaum J.
17/3/00
31 pp.
Motion for summary judgment to recover amounts owing by defendant for freight and ancillary charges plus interest--Cross-motion by defendant for order granting leave to amend statement of defence and counterclaim; order for stay pending outcome of action commenced by defendant in Ontario Superior Court; order main action and counterclaim be tried together in Federal Court or in Ontario Superior Court--Plaintiff Pantainer Swiss carrier of goods by water--Plaintiff Panalpina Canadian forwarder acting as agent of Pantainer in making arrangements for physical transport of cargos by ocean carriers for which cargos Pantainer issues transport documents--Defendant Canadian importer of foodstuff--Since 1997, defendant and plaintiffs entered into contracts whereby plaintiffs would ship to and store in Canada food products ordered by defendant from Italy and elsewhere--Defendant alleging that on number of occasions since 1997, plaintiffs breached fundamental terms of contract, causing defendant to suffer damages, thereby preventing plaintiffs from now claiming relief sought in statement of claim--Business relationship between plaintiffs and defendant terminated in 1998--Not disputed that defendant agreed claims would not be applied against freight and ancillary charges owing--By counterclaim, defendant claiming damages for negligence, breach of contract and negligent misrepresentation in amount of $150,000; punitive, aggravated and exemplary damages in amount of $100,000; interests; costs--Issues whether defendant entitled to right of set-off, and if not, should judgment be stayed until determination of counterclaim; whether claims relating to warehousing of goods within jurisdiction of Court--Motion for summary judgment allowed; defendant's cross-motion, motion for stay denied--As to Court's jurisdiction, claims for warehousing and storage herein arose out of contracts for carriage of goods by sea and as such within jurisdiction of Court--General rule to effect freight must be paid without deduction unless parties have agreed otherwise--Nothing in terms and conditions set out by parties to suggest rule not applicable herein; therefore, defendant owing amount of $144,037.98 to plaintiffs--No reason why defendant should not pay what is owing for freight costs--Court grants summary judgment asked by plaintiffs and orders defendant to pay plaintiffs sum of $144,037.98, with interest from February 1, 1999 to date of payment together with pre- and post-judgment interest in accordance with provisions of Federal Court Act, with costs--Cross-motion by defendant denied as defendant's counterclaim cannot be decided without full hearing before Court--Motion for stay of decision on plaintiffs' summary judgment motion denied--Federal Court Act, R.S.C., 1985, c. F-7.