Ex. C.R. EXCHEQUER COURT OF CANADA 219 QUEBEC ADMIRALTY DISTRICT 1955 BETWEEN : June 8 1956 DEEP SEA TANKERS LIMITED PLAINTIFF; Jan.20 AND SHELL OIL COMPANY ADDED PLAINTIFF; AND THE SHIP TRICAPE and HER OWNERS, TRITON STEAMSHIP DEFENDANTS. COMPANY LTD. Shipping—Collision—Motion to have name of party stricken from record —Motion dismissed. Held: That where, after a collision between two vessels, the solicitors acting for the owners of one of the colliding vessels give to the owners of the other vessel an undertaking to appear in any proceedings which may be instituted, the former when an action in rem is instituted against their vessel, become defendants in the suit from its inception without it being actually necessary to specifically name them as such. 73670-1/a
220 EXCHEQUER COURT OF CANADA [1956] 1956 MOTION to strike out the name of an added defendant. DEEP SEA TANKERS The motion was heard before the Honourable Mr. Justice LTD. Arthur I. Smith, District Judge in Admiralty for the Quebec evt al. Admiralty District, at Montreal. THE Sam Tricape C. Russell McKenzie, Q.C. for the motion. Jean Brisset, Q.C. contra. SMITH D.J.A. now (January 20, 1956) 'delivered the following judgment: WHEREAS in the course of the proceedings leading to the hearing on the Reference in this case, the plaintiff added the name of Triton Steamship Company Limited, owners of the Tricape; WHEREAS the defendants moved to have the name of Triton Steamship Company Limited stricken from the record on the ground that these defendants had been added without the permission of the Court and illegally and because such an addition represented an attempt to unlawfully graft an action in personam onto an action in rem; WHEREAS this motion was referred to the hearing on the Reference and now must be dealt with; " CONSIDERING that prior to the institution of the present action, and in order to avoid the arrest of the Tricape, counsel for the defendant vessel gave an undertaking in the following terms: Montreal, 30th March, 1948. Deep Sea Tankers Limited, c/o Beauregard, Laurance & Brisset, 240 St. James Street West, M6ntreal, Que. Dear Sirs, Re: S.S. Tricape and S.S. Paloma Hills—Collision March 1948 In consideration of your not arresting the S.S. Tricape owned by Triton Steamship Company Limited, on their behalf we agree as follows:- 1. To accept service of any legal proceedings you may institute in the Province of Quebec against the S.S. Tricape or her owners, for damages occasioned by the above collision; 2. To have an Appearance entered in the said proceedings on behalf of the owners of the S.S. Tricape;
Ex. C.R. EXCHEQUER COURT OF CANADA 3. Upon demand, and whether or not the S.S. lost, to furnish bail in the said proceedings, by means of a bail bond in DE the usual form executed by a surety company authorized to furnish such TANKERS bonds in the Courts of the Province of Quebec, in an amount not exceeding the amount of the damages sustained by the Paloma Hills, and costs, such amount not to exceed in any event the sum of $50,000; the amount of such bond to be without prejudice to the amount of any final judgment in excess thereof. This undertaking will remain in full force and effect for a period of Smith D.J.A. two years from the date of the collision. Yours very truly, MONTGOMERY, McMICHAEL, COMMON, HOWARD, FORSYTH & KER Per: C. Russell McKenzie CONSIDERING that, having regard to this engagement and on the authority of the holding in the case of the Dictator (1), I find that the owners of the Tricape, even though not named in the Writ of Summons, were defendants in the present litigation from its inception and that it was actually unnecessary to specifically name them as such; CONSIDERING that the defendants' motion to strike is unfounded; DOTH DISMISS same with costs. 221 Tricape shall have been 1956 E P SEA LTD. plus interest et al. THE v S ' HIP Tricape Order accordingly.
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