Budget Steel Ltd. v. FMW Towing Ltd.

In Admiralty Practice, Parties on (Updated )

This matter concerned the capsizing of a barge and the consequential loss of her cargo. The Plaintiff, the owner of the cargo, originally commenced these proceedings against the owners of the barge and the tugs towing her. More than two years after the capsize the Plaintiff brought this application to add the owners of a passing ship and to amend the Statement of Claim to allege that the wake of the passing ship caused the capsize. The proposed Defendants contested the application arguing that the limitation period had expired and that they had been prejudiced by the lapse of time in that they did not have the opportunity to properly investigate the incident. With respect to the limitation period issue the Prothonotary held that the running of the limitation period did not prevent the addition of the Defendants as they would be entitled to plead and argue the limitation defence. The Prothonotary had more difficulty with the prejudice issue since the Plaintiff had written to the proposed Defendants advising them that they considered the cause of the capsize to be the unseaworthiness of the barge. However, the proposed Defendants had been aware of the incident from the time of the capsize and had been added as Third Party Defendants. The Prothonotary ultimately held that although there had been some prejudice this prejudice was self inflicted in that it was due to an oversight or lack of initial assessment and investigation on the part of the proposed Defendants. In result, the proposed Defendants were added as parties.