A. G. Kelloway, J. J. Wakeham, K. R. Janes, P.
W. Flynn, J. Hynes, J. Follett, B. Fushell, C.
Dominaux, Sr., P. J. Flynn, R. P. Coady, E. R.
Parsons, I. Ward, H. Russell, I. Matthews, M.
Evans, T. G. Carroll, T. Mulrooney, E. Scott, C.
T. Bruce, M. Hillard, A. Clarke, W. G. Loder, F.
O. Mills, and L. Banfield (Plaintiffs)
v.
Engineering Consultants Limited, Kent Lines
Limited, J. D. Irving Limited, and Universal
Sales Limited (Defendants)
Trial Division, Walsh J.—St. John's, Newfound-
land, June 21; Ottawa, July 6, 1972.
Maritime law—Action for salvage—Not brought within
two year prescription period—Extension of time granted—
Canada Shipping Act, R.S.C. 1970, c. S-9, s. 536(1).
Because of pressure of other work, plaintiffs' solicitor
failed to commence an action for salvage services by plain
tiffs within the two years allowed by section 536(1) of the
Canada Shipping Act.
Held, plaintiffs' application under section 536(2) for an
extension of time to commence proceedings should be
granted. Plaintiffs appeared to have a valid prima facie
claim and defendants appeared to have suffered no preju
dice from the delay and did not contest the application.
Chemainus Towing Co. v. The Capetan Yiannis [1966]
Ex.C.R. 717, referred to.
MOTION.
R. Wells for plaintiffs.
WALSH J.—By motion heard in St. John's,
Newfoundland, plaintiffs ask that leave be
granted pursuant to section 536(2) of the
Canada Shipping Act for plaintiffs to issue a
writ claiming for salvage services rendered to
defendants by plaintiffs on February 12, 1970.
The affidavit of plaintiffs' solicitor supporting
the motion indicates that he was consulted in
January 1971 by a Mr. Joseph Hynes of Pla-
centia, Newfoundland, a representative of the
master and crew of the Canadian National Rail
ways motor vessel Petite Forte with respect to a
possible salvage claim on their behalf against
the owners of the motor vessel Aimé Gaudreau,
which vessel had been on fire and which they
had towed on the high seas from 11.20 hours
until 17.30 hours on February 12, 1970, where
by the vessel was towed to a point of safety
some two miles from the port of Argentia, New-
foundland. The owners of the Petite Forte did
not propose to make a claim for salvage. By
virtue of section 531 of the Canada Shipping
Act, where salvage services are rendered by a
ship belonging to Her Majesty, or by the com
mander or crew thereof, no claim shall be
allowed or adjudicated upon, unless the consent
of the Governor in Council to the prosecution
of the claim is proved, and accordingly he made
application on January 11, 1971 to the Clerk of
the Privy Council on behalf of the master and
crew for such consent but it was not until July
15, 1971 that he received from the Department
of Transport in Ottawa copies of an Order in
Council dated June 1, 1971, granting the neces
sary consent. As it was out of term by this time
he put the file aside with the intention of issuing
a writ in the fall term of the Court and proceed
ing with the action, but during the autumn of
1971 and the winter of 1972 he was engaged in
matters of a public nature and as there was no
correspondence from his clients with respect to
the claim during this period he overlooked the
commencement of proceedings until April 1972
when he prepared to issue a writ only to find
that it was prescribed by the two year limitation
set forth in section 536(1) of the Canada Ship
ping Act, which reads as follows:
536. (1) No action is maintainable in respect of any sal
vage services, unless proceedings therein are commenced
within two years from the date when the salvage services
were rendered.
He alleges that no prejudice has accrued to
the defendants, which companies are owners of
the motor vessel Aimé Gaudreau by reason of
the delay in proceeding with the action and asks
the Court to exercise the power granted under
section 536(2) of the Canada Shipping Act to
extend the time for the issue of a writ.
Section 536(2) reads as follows:
536. (2) The court having jurisdiction to deal with an
action to which this section relates may, in accordance with
the rules of court, extend any such period to such extent
and on such conditions as it thinks fit, and shall, if satisfied
that there has not during such period been any reasonable
opportunity of arresting the defendant vessel within the
jurisdiction of the court, or within the territorial waters of
the country to which the plaintiff's ship belongs or in which
the plaintiff resides or has his principal place of business,
extend any such period to an extent sufficient to give such
reasonable opportunity.
In argument before me it was conceded that
the latter part of section 536(2) has no applica
tion in the present case as the defendant vessel
was within the territorial waters of Canada
during the period when the proceedings might
have been served and, in any event, the pro
ceedings are not being brought as an action in
rem but merely as an action in personam against
the owners of the vessel. He contended, how
ever, that section 536(2) really breaks down
into two parts, the latter part being mandatory
since it is preceded by the word "shall" so that
if there has been no reasonable opportunity of
arresting the defendant vessel within the juris
diction of the court or within the territorial
waters of the country to which plaintiff's ship
belonged, the court would be obliged to extend
the period for service, but that the first part of
section 536(2) gives the widest possible discre
tion to the court permitting it to extend the two
year period within which section 536(1)
requires the proceedings to be commenced "to
such extent and on such conditions as it thinks
fit" in accordance with the rules of court. The
jurisprudence referred to appears to support
this interpretation.
The case of Chemainus Towing Co. v. The
Capetan Yiannis [1966] Ex.C.R. 717, although
it dealt with the latter part of section 536(2)
(then section 655(2)) and refused to grant the
extension because the vessel had been within
the jurisdiction of the court before the expira
tion of the limitation period even though plain
tiffs were not aware of this, discussed at some
length the British jurisprudence dealing with a
substantially similar section of the Maritime
Conventions Act, 1911. At page 721 Sheppard
D.J. refers to the judgment of Hill J. in The
Espanoleto [1920] P. 223 where he said at page
226:
In general, leave will not be granted if, but for the
enlargement of time, the plaintiff's claim would be barred
by a statute of limitations. That is to say, it will not be
granted to revive a barred cause of action: see Doyle v.
Kaufman ((1877) 3 Q.B.D. 7, 340); and with reference to
that case Smallpage v. Tonge ((1886) 17 Q.B.D. 644, 648)
and especially Hewett v. Barr ([1891] 1 Q.B. 98). In general
the Court must not by renewal deprive a defendant of an
existing right to the benefit of a statute of limitations. But s.
8 of the Maritime Conventions Act is a limitation section of
a very peculiar kind, for it contains a proviso unknown to
any other statute of limitations; in one event—namely, if
there has not been any reasonable opportunity of arresting
the defendant vessel within the period—it directs the
extension of the limited period of two years, and further
gives the Court power to extend it on any other sufficient
grounds.
In my judgment, when an application to extend the time
for the renewal of a writ in an action which comes within s.
8 is made, the matter is not to be disposed of merely by
saying that the two years have elapsed and the claim is
statute barred and no renewal can be granted. The applica
tion to renew must be considered on its merits, and the
Court must inquire whether the circumstances are such that
the Court would give leave to issue a writ, notwithstanding
that the time had expired.
While in the present case the writ had never
been issued so we are not dealing with an
application to extend the time for service of the
writ but rather for leave to issue it, the same
principles would seem to apply.
The judgment of Sheppard D.J. also refers to
the case of The Arraiz (1924) 132 L.T. 715 in
which Pollock M.R. said at page 716:
All that is quite true: but to the section there is a proviso.
It is in two parts; and the first says that the court may
extend the period to such an extent and on such conditions
as it thinks fit. Now it seems to me that those words give
the widest possible discretion to the court.
The second part of the proviso says that the court shall if
satisfied in a particular way extend the period to an extent
sufficient to give a reasonable opportunity to arrest the
ship.
Sheppard D.J. also refers to two judgments
dealing with the conditions which might justify
the Court extending the period, stating at page
722:
It is clear, therefore, that Sec. 655(2) is divided into two
parts. The first is prefaced by the words, "to such extent
and on such conditions as it thinks fit", and that is deemed
to require special circumstances described in The Kashmir
([1923] P. 85), by Hill J. at p. 90 as follows:
The only reason alleged in the present case for interfer
ing is that the plaintiff, though she knew of the loss of her
son, did not know that the loss gave her any cause of
action. It seems to me that that is a wholly insufficient
ground for depriving the defendants of a right which they
had otherwise acquired, especially after so long an
interval.
and in The James Westoll ([1923] P. 94), by Lord Parker of
Waddington at p. 95 as follows:
It appears to me that what the Court has to do is to
consider the special circumstances of the case and see
whether there is any real reason why the statutory limitation
should not take effect. I have carefully read the affidavit
which has been filed and really it only amounts to this, that
it was not until a comparatively recent date namely, April,
1913, that the amount of the claim could be ascertained. I
think that is not a sufficient reason.
Those do not here apply.
I would also refer to the judgment of Jackett
P., as he then was, in the case of Sumitomo
Shoji Kaisha Ltd. v. First Steamship Co. [1970]
Ex.C.R. 754 in which he was dealing not with
an exceptional provision such as section 536(2)
of the Canada Shipping Act permitting the com
mencement of proceedings notwithstanding the
fact that the defendants had already acquired
the benefit of the limitation set out in section
536(1), but merely with an application for per
mission to extend the delay for service of a writ
ex juris when the year delay within which it
should have been served was about to expire. In
that case the solicitors of plaintiffs had been
dealing with lawyers for an insurer protecting
only the parties for whom an appearance had
been filed and he stated at pages 760-62:
No action has been taken by the plaintiffs to communicate
to the foreign defendants that they are being held liable for
the damages complained of. There is no evidence that there
was any reason, much less any sufficient reason, for not
taking steps to serve these defendants immediately after the
writ of summons was issued.... The rules of court contem
plate, and the justice of the matter requires, that, when an
action is commenced, the appropriate papers be com
municated to the defendants. The law is designed to put
some limit on the length of time that can be allowed to
elapse before facing a person with a lawsuit.
In the present case, while it is true that nearly
a year elapsed between the date of the salvage
and the date when plaintiffs' attorney was first
instructed and that a further six months then
elapsed before he obtained the Order in Council
authorizing the proceedings, and that this was
during the summer recess, nevertheless he still
had from July 1971 until February 12, 1972 to
issue a writ and serve same on defendants in
Saint John, New Brunswick, and he concedes
that his failure to do so was an error on his part.
If I were to adopt as strict an interpretation
of the requirements of the first part of section
536(2) as the British courts have in refusing to
extend the period in The Kashmir and The
James Westoll cases (supra), I would be obliged
to dismiss this motion, as mere oversight by an
attorney can hardly be considered as "sufficient
reason" for not bringing the proceedings within
the proper delay, but these cases while persua
sive are not binding on me, and it should be
noted that neither section 8 of the Maritime
Conventions Act, 1911, on which these judg
ments were based, nor section 536(2) of the
Canada Shipping Act, which is identical with
that section, use the words "sufficient reason"
but merely use the words "on such conditions
as it thinks fit" thereby leaving the discretion of
the Court unfettered in each individual case.
Moreover, the judgment of Jackett C.J. in the
Sumitomo Shoji Kaisha case (supra) was deal
ing with section 17(2) of the Admiralty Rules in
effect at the time, permitting the extension of
the delay for serving a writ of summons when
"for any sufficient reason a writ has not been
served on a defendant within the time limited
for service", and hence an inquiry into the
sufficiency of the reason was necessary, so that
judgment can be distinguished from the present
case.
While I cannot, therefore, find that there was
"sufficient reason" in the present case for not
commencing proceedings within two years from
the date when the salvage services were ren
dered, I am not required to so find, and I think
it fit to extend the delay for the following
reasons:
1. Plaintiffs would appear to have a valid
prima facie claim against defendants for the
salvage services rendered (although I am, of
course, not so deciding in the absence of any
evidence at this stage of the proceedings).
2. Defendants must have at all times been
aware that such a claim could be made and
would appear to have suffered no prejudice
by the delay, while on the contrary if they
were released from liability for such a claim
as a result of an oversight on the part of
plaintiffs' attorney, this would constitute a
serious prejudice to plaintiffs.
3. Defendants have not contested the present
motion, although duly served, and while their
failure to do so is not equivalent to a consent
to same, it indicates a willingness to leave the
matter to the discretion of the Court, rather
than an insistence on availing themselves of
the limitation period in section 536(1) of the
Act.
The motion is therefore granted, but without
costs in any event of the cause, and the delay to
issue the claim shall be extended for thirty days
from the date of this judgment.
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.