Algoma Central Corp. v. Prestigious ( The )
T-2287-88
Strayer J.
17/6/94
7 pp.
Defendant vessel Prestigious found responsible for 80% of damages caused to plaintiff's vessel Algosoo, and latter, for 20% -- R. 344.1 providing where plaintiff making offer to settle which has not been revoked, and obtains judgment as favourable or more favourable than offer, plaintiff entitled to party and party costs to date of service of offer and double such costs, excluding disbursements, thereafter, unless otherwise ordered -- Settlement offer on December 6, 1993 more favourable to defendants than trial award -- R. 344.1 not applying automatically -- Approved by Order in Council on day trial commenced (January 13, 1994) -- Court having discretion in matter as, even if R. 344.1 applies, regime thereunder prevails "unless otherwise ordered" -- Whether exercising that discretion or discretion provided under R. 344(3)(g), Court awarding increase in costs after settlement offer as very reasonable and should have appeared so to defendants -- As offer only made five to six weeks before trial to commence, and much of expense of preparation already incurred, defendants to pay full party and party costs of plaintiff up to date of offer and disbursements plus 150% of party and party costs thereafter -- Defendants arguing for first time in these proceedings Canada Shipping Act, s. 565, providing for apportionment of liability according to degree of fault, not applicable as no collision herein, thereby barring plaintiff from recovery or limiting recovery to 50% of damages -- Argument rejected as Court relying on s. 565 to effect apportionment according to fault, no such defence raised in pleadings, and improper case to change reasons -- Further s. 565 clearly applies even if no collision as situation involving fault of two or more vessels in which loss caused to one of those vessels -- Court having full discretion -- Cases involving apportionment of costs along with liability distinguished -- Canada Shipping Act, R.S.C., 1985, c. S-9, s. 565 -- Federal Court Rules, C.R.C., c. 663, RR. 344(3)(g) (as am. by SOR/87-221, s. 2), 344.1 (as am. by SOR/94-41, s. 3), 409.