Date: 20001011
Docket: T-1492-97
BETWEEN:
IMPERIAL OIL LIMITED
Plaintiff
- and -
PETROMAR INC. and
PETROMAR MARKETING INC.
Defendants
REASONS FOR ORDER
MacKAY, J.:
[1] These reasons confirm those given orally at the conclusion of a telephone conference on September 29, 2000 for hearing the defendant's motion for reconsideration of, and an order to vary, the rate of pre-judgment interest ordered by this Court on August 16, 2000, in disposing of this action. After hearing counsel for the parties the motion was denied because I was not persuaded that the Court had erred as required for reconsideration of an order or judgment, pursuant to Rule 397 of the Federal Court Rules, 19981.
[2] As indicated in Reasons for Order dated August 16, 2000, this matter was heard as a special case on an Agreed Statement of Facts, pursuant to Rule 220 of the Court's Rules. The Agreed Statement of Facts, so far as relevant for this application provided:
| 18. The parties agree that: |
| (a) the determination of the applicable substantive law is to be made according to Canadian rules of conflict of laws; |
| (b) if Petromar's claim against the vessels is governed by United States substantive law, the supply of marine lubricants gives rise to a maritime lien enforceable by way of an action in rem against the vessels and Petromar is entitled to judgment in an amount equal to the sum of US$79,211.10 converted to Canadian currency at the average rate of exchange prevailing between March 11 and August 6, 1996 together with prejudgment interest from August 6, 1996 to the date of judgment; |
| (c) if Petromar's claim against the vessels is governed by Canadian substantive law, it has no maritime lien against the vessels and no right in rem against the vessels and Imperial is entitled to a declaration to that effect; |
| (d) the result in this action shall be binding on the parties in action no. T-2675-97; and |
| (e) the successful party shall be entitled to its costs on such terms and scale as this court may in its discretion determine. |
[3] In judgment of the matter I determined that the applicable substantive law, according to Canadian conflict of laws rules, is that of the United States in the circumstances of this case and that, as the parties had agreed, the defendants Petromar had maritime liens on the plaintiff's vessels M.V. "Le Brave" and M.V. "Farquharson". I awarded judgment in the amount equivalent to U.S. $79,211.10 converted to Canadian currency at the average exchange rate prevailing between March 11 and August 6, 1996, together with pre-judgment interest from August 6, 1996 to the date of that Judgment at the average prime bank lending rate prevailing through that period. In accord with the agreement of the parties, I ordered the Judgment bind them in another action, numbered T-2675-97.
[4] All of the terms of the Judgment were those agreed to by the parties, dependant upon my determination of the applicable law, except for the rate fixed by me for pre-judgment interest. The awarding of pre-judgment interest was settled by agreement between the parties and included in the Agreed Statement of Facts, but that made no reference to the rate of interest to be applied.
[5] The defendant urges that I overlooked the fact that in Court file T-2675-97, the other action which it was agreed would be bound by my determination in this matter, the defendant had included in the Statement of Claim a claim to pre-judgment interest at the rate of 18% per annum. Also, it is urged I overlooked that in one of the agreements for provision of marine lubricants, that between Petromar Inc. and Star Ship Management Limited, the manager and operator of the vessels on behalf of the plaintiff, provision was made for interest at the rate of 1.5% per month from the date that payment was due under the contract. Of course, that was not an agreement between the plaintiff and the defendants. Moreover, as the plaintiff notes, that agreement, included in the schedules to the Agreed Statement of Facts, speaks not of interest but of "a service charge accruing to Petromar at the rate of 1.5% per month".
[6] I concede that I did not refer to or consider any terms of the Statement of Claim in Court file T-2675-97 or of the agreement between Star Ship Management Limited and Petromar. That agreement was one of several between a variety of companies which resulted in the supply of marine lubricants to the plaintiff's vessels, among others. The only reference to that agreement in the Agreed Statement of Facts is as follows:
| 8. By agreement dated May 1, 1995, (the "Petromar/Star Lubricants agreement"), attached as Schedule 4 hereto, Petromar contracted with Star for the supply of marine lubricants to be delivered on the instructions of Star to various vessels Star managed around the world, including those managed on behalf of Socanav and, more particularly, the vessels. |
[7] At the hearing of this matter no attention was given by either of counsel to the appropriate rate of pre-judgment interest if it were to be awarded, and no reference was made either to the agreement between Star Ship Management and Petromar or to the claim for interest in another Court file, a claim which I did not consider since the parties had agreed that what I determined in this Court file would be applicable to both actions.
[8] In the circumstances, no reference having been made in the Agreed Statement of Facts or in the thorough written submissions and oral argument on behalf of both parties to the rate of pre-judgment interest, in the absence of any submissions about the matter I assigned the rate which seemed to me appropriate, a rate often assigned in relation to claims under maritime law.
[9] In this case, absent submissions of the parties on the matter of the interest rate applicable or to the documents now pointed to by the defendants, I do not consider that I overlooked or accidentally omitted to consider those documents. The circumstances of this case, in my opinion, do not fall within Rule 397, which provides for the Court to reconsider an order on the ground that a matter that should have been dealt with has been overlooked or accidentally omitted.
[10] For these reasons I dismissed the defendants' motion for reconsideration.
[11] I add that in subsequent review of this file, T-1492-97, I note that in the Statement of Defence filed by Petromar Inc. in this matter a declaration was sought that the company holds maritime liens against the vessels in question, in the amount agreed upon in the Agreed Statement of Facts "plus interest at the rate of 18% per year from the date payment was due pursuant to the marine lubricant contract". That reference does not in any way affect my determination of this application. I reiterate that neither in the Agreed Statement of Facts nor in the submissions of the parties when the matter was heard, was any reference made to the rate of pre-judgment interest or to this term of the Statement of Defence filed in this action by Petromar.
[12] An Order issued confirming that rendered orally, dismissing the motion on behalf of Petromar for reconsideration.
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
October 11, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1492-97
STYLE OF CAUSE: IMPERIAL OIL LIMITED v. PETROMAR INC. ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: SEPTEMBER 29, 2000
REASONS FOR ORDER OF MacKAY, J.
DATED: OCTOBER 11, 2000
APPEARANCES:
GEORGE R. STRATHY FOR PLAINTIFF
RICHARD L. DESGAGNÉS FOR DEFENDANTS
SOLICITORS OF RECORD:
STRATHY & RICHARDSON
TORONTO FOR PLAINTIFF
OGILVY RENAULT
MONTRÉAL FOR DEFENDANTS
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