In Rem Actions and Arrest - Case Summaries
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B.C. Admiralty Rules – Arrest – Sale Pendente Lite – Shareholder’s Dispute – Application of PPSA
Avina v. The Ship Sea Senor, 2016 BCSC 749
Précis: The B.C. Supreme Court refused to set aside an arrest but also refused to order the sale of a vessel under arrest pendente lite.
Facts: The plaintiff and defendant purchased a vessel together through a company incorporated by the defendant and of which the defendant was the sole director. Differences arose between the parties leading to the plaintiff’s commencement of this action and the arrest of the vessel. The plaintiff brought this application to sell the vessel pendente lite. The defendant opposed and brought its own application to set aside the arrest.
Decision: Both motions are dismissed.
Held: With respect to the plaintiff’s motion to sell the vessel pendente lite, the plaintiff argues that the vessel is deteriorating and a sale is necessary to halt the deterioration in value. However, the defendant’s evidence is that the vessel is not seriously deteriorating and this evidence is more convincing. Further, the value of the plaintiff’s claim is modest relative to the value of the vessel and it appears the defendant has an arguable defence. In the circumstances, an order for sale is not necessary or expedient.
The defendant argues that the arrest of the vessel should be set aside on the grounds that the dispute between the parties is a shareholder’s dispute and that there is no basis for the exercise of the court’s maritime law jurisdiction. However, Rule 21-2 of the Supreme Court Civil Rules provides that an action in rem may be brought whenever permitted in the Federal Court of Canada. The claim is “with respect to title, possession or ownership of a ship or any part interest therein” within the meaning of s.22(2)(a) of the Federal Courts Act . The claim could have been brought in rem in the Federal Court and is a claim for relief under or by virtue of Canadian maritime law. This is sufficient to dismiss the defendant’s application.
In Rem Actions - Arrest - Change of ownership - Issue Estoppel
Fingad Shipping Ltd. v. Ningbo Arts & Crafts Imp & Exp. Co. Ltd., 2015 FC 851
Précis: The court applied issue estoppel and struck an in rem action on the grounds that a French court had previously determined the owner at the time of the commencement of the action was not the same as at the time the cause of action arose.
Facts: The plaintiffs contracted with the defendant for the construction of several vessels, including the defendant vessel, the “Chemical Aquarius”. The contracts were subsequently cancelled and arbitral proceedings were held. In 2012 the “Chemical Aquarius” was sold by the corporate defendants. In 2013 the plaintiffs obtained arbitral awards against the corporate defendants, substantial portions of which were outstanding. In April 2015 the plaintiffs commenced a proceeding in France to enforce the arbitral awards and had the “Chemical Aquarius” arrested. On 7 May 2015 the French court lifted the arrest of the vessel. On 3 July 2015 the plaintiffs commenced this action in the Federal Court for the amounts outstanding and again arrested the “Chemical Aquarius”. The plaintiffs also commenced a separate application in the Federal Court for recognition and enforcement of the arbitral awards. The defendants then brought this application to strike the statement of claim or, alternatively, to set aside the arrest.
Decision: Application granted. The statement of claim is struck.
Held: To succeed in this application the defendants must show it is “plain and obvious” the statement of claim has no merit. The burden is high and the court should only strike a pleading in the clearest of cases. The facts pleaded are to be taken as true but the legal conclusions that are alleged to flow from such facts are not entitled to the same presumption. The defendants argue that the owner of the “Chemical Aquarius” at the time this action was commenced was different from the owner at the time of the events giving rise to the action and, therefore, there is no right of action in rem. In particular, the defendants argue that this issue was determined by the French court in a decision that gives rise to issue estoppel. The three pre-conditons for issue estoppel are: (1) the same question has been decided; (2) the judicial decision that creates the estoppel is final; and (3) the parties are the same in both actions. Conditions 2 and 3 are not disputed and the only condition at issue here is whether the French court decided the same issue. Although the French court was dealing with the 1952 Arrest Convention, the central issue in that decision was the same as the central issue in the present motion, namely, whether the ownership of the “Chemical Aquarius” had changed. The French court held the vessel could not be arrested because of the change in ownership. The issue was considered in full and the decision was final. The plaintiffs now say they have new evidence that was not considered by the French court. To allow new evidence would “permit parties to gut issue estoppel of any substantial meaning”. Accordingly, the conditions for issue estoppel are satisfied.
Arrest of Cargo by Unpaid Seller Set Aside - Insolvency of Buyer - s. 69 Bankruptcy Act Stays - Jurisdiction of Federal Court
LF Centennial Pte. Ltd. v. TRLU7228664 et al (Containers), 2015 FC 214
Précis: An in rem plaintiff has no right to commence proceedings and arrest in Federal Court when there are ongoing insolvency proceedings in a provincial superior court and an outstanding order under the Bankruptcy and Insolvency Act staying all proceedings.
Facts: The plaintiff is a buying agent on behalf of garment retailers and had acted as buying agent for Mexx. In December 2014 Mexx became insolvent. A stay of proceeding under the Bankruptcy and Insolvency Act was put in place and various insolvency related orders were made by the Quebec superior court. On 23 December 2014 the plaintiff commenced this in rem” proceeding against various shipments and had the cargo arrested. The plaintiff did not obtain leave from the Quebec superior court before commencing the proceeding. The plaintiff alleged it was an unpaid seller exercising its right of stoppage in transit. Mexx and its receiver brought this application to quash the arrest and strike the statement of claim.
At first instance, the Prothonotary held the plaintiff had no right to bring this proceeding without first obtaining leave from the Quebec superior court. In reaching this conclusion the Prothonotary distinguished Holt Cargo Systems Inc v ABC Containerline NV (Trustees of), 2001 SCC 90 on the basis that in Holt the ship had been arrested and sold before the bankruptcy proceedings had been commenced. The plaintiff appealed.
Decision: Appeal dismissed.
Held: Section 188(2) of the Bankruptcy and Insolvency Act is prescriptive and mandatory. It requires all courts to act in aid of the bankruptcy/insolvency court. The Prothonotary had no discretion and was bound to come to the aid of the superior court to ensure the stay was respected. The plaintiff did not obtain leave before commencing this proceeding and the proceeding is therefore ineffective. The Prothonotary correctly distinguished the Supreme Court’s decision in Holt as nowhere in that decision is there a consideration of the s. 69 stay of proceedings. A more fundamental distinction between this case and Holt is that Holt concerned bankruptcy proceedings and secured creditors whereas this matter concerns insolvency proceedings. In bankruptcy proceedings secured creditors are not affected by the stay of proceedings but the stay does apply to secured creditors in insolvency proceedings. Additionally, the plaintiff’s claim flows exclusively from a commercial contract of sale with no maritime component. The mere fact the garments were carried on a ship does not establish a sufficient connection to make it subject to maritime law. The underlying claim does not relate to shipping and navigation and does not fall within the court’s admiralty jurisdiction.
Jurisdiction - In Rem Proceedings - Constructive Trust - Whether Alleged Proceeds of Fraud used to Construct Vessel Support In Rem Action
Harry Sargeant III v. Al-Saleh, 2014 FCA 302
Précis: The Federal Court of Appeal held that a foreign fraud judgment in a non-maritime matter could not support a claim in rem and was outside the jurisdiction of the Federal Court.
Facts: Sargeant and Worldspan entered into an agreement for the construction of a vessel by Worldspan. Sargeant advanced funds to build the vessel which were secured by a builder’s mortgage. Sargeant advanced approximately $11 million towards the construction and then entered into a loan agreement with Comerica to finance the completion of the building. Sargeant’s interest in the construction agreement was assigned to Comerica. Comerica advanced an additional $9 million towards the construction. A dispute then arose concerning the costs of construction and construction was halted. The vessel was arrested in Federal Court and Worldspan filed a petition in the British Columbia Supreme Court seeking relief under the Companies Creditors Arrangement Act (“CCAA”) of British Columbia. Pursuant to the process adopted in the two courts, in rem claims against the vessel were to be decided in the Federal Court and all other claims were to be decided in the British Columbia CCAA proceedings. Al-Saleh sought an order for leave to file an in rem claim to enforce a judgement obtained from the Florida Circuit Court. The judgment was in the amount of US$28 million and was for fraud and conspiracy to commit fraud in relation to a business scheme that had nothing to do with maritime matters. Al-Saleh alleged some of the monies of which he was defrauded were paid to Worldspan and used in the construction of the vessel and that this gave rise to an in rem claim. Sargeant opposed the application and by its own motion requested that the Al-Saleh claim be dismissed.
At first instance (unreported), the Prothonotary granted the motion of Al-Saleh, held the court had jurisdiction to adjudicate the in rem claim, recognized the Florida judgment and dismissed the motion of Sargeant. Sargeant and Comerica appealed and were successful, in part. On appeal (2013 FC 1204) the appeal Judge held that: (a) the court had jurisdiction to adjudicate the in rem claim; (b) the Sargeant motion should be dismissed; and, (c) the Florida judgment should not be recognized and enforced. With respect to the Florida Judgment, the appeal Judge held that the relief granted in that judgment did not fall within the Federal Court’s jurisdiction pertaining to Canadian maritime law and therefore could not be recognized and enforced. Sargeant and Comerica further appealed on points (a) and (b).
Decision: The appeal is allowed and the in rem claim of Al-Saleh (the “Respondent”) is dismissed.
Held: Both the Prothonotary and the appeal Judge were clearly wrong when they decided the Federal Court had jurisdiction to entertain the Respondent’s claim. The claim does not relate to any subject matter over which the court has jurisdiction. It cannot succeed and must be dismissed. The Respondent alleges that the funds of which he was defrauded were used to finance the construction of the vessel and that he therefore has an interest in the vessel. He also asserts that the doctrines of constructive trust and unjust enrichment support his claim. He finally adds that he can trace his property to the vessel. In essence, the Respondent alleges that his claim is one for an ownership interest in a ship pursuant to s. 22(2)(a) of the Federal Courts Act. The Appellant argues that a claim of an ownership interest is not sufficient to support jurisdiction. That is not correct. “There can be no doubt whatsoever that once a claim is held to fall within one of the heads found in subsection 22(2) of the Act, there is necessarily substantive maritime law to support the claim.” However, the question is, does the Respondent’s claim fall within s. 22(2)? The Respondent could not have brought in Federal Court the claim that he brought in the Florida court as it has nothing to do with maritime law. This is why the appeal Judge correctly refused to recognize the Florida judgment. There must be a body of federal law essential to the disposition of the case before the Federal Court has jurisdiction. There is no such federal law here. Further, the Respondent’s claims are not “so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal competence”. Rather the claim raises issues that are within the exclusive legislative jurisdiction of the provinces.
Comment: Perhaps the most interesting point made in this decision is the statement that where a claim falls within s. 22(2) of the Federal Courts Act there is necessarily substantive maritime law to support it.
In Rem Actions – Arrest – Lien for Demurrage – Appropriate Security - Time Limited Guarantee
BBC Chartering Carriers GmBH & Co. KG v. Jindal Steel & Power Limited, 2014 FC 1205
Précis: The Federal Court refused to set aside an arrest where the underlying claim was by a charterer for demurrage. The court also held that time limited security to obtain the release of an arrest was not acceptable.
Facts: The plaintiff and defendant entered into a voyage charter on the Gencon form with the plaintiff as owner (in fact it was a time charterer) and the defendant as the charterer. The defendant was also the shipper of the cargo covered by bills of lading which were subject to the charter party. The charter party contained a lien clause that gave the plaintiff a lien on cargo for freight, dead-freight, demurrage and claims for damages. The plaintiff commenced these proceedings claiming demurrage and other expenses at discharge and arrested the cargo. The defendant then brought this motion to set aside the arrest on the basis there was no jurisdiction in rem. The plaintiff also brought a motion to enforce an agreement to provide security.
Decision: The defendant’s motion is dismissed. The plaintiff’s motion is granted.
Held: The defendant argues that the arrest should be set aside and the in rem action struck because the lien created by the charter party is a possessory lien and, since the plaintiff gave up possession, it no longer has a lien. The difficulty with this argument is the lien clause includes demurrage at discharge which implies that possession would be given up. At this stage of the proceeding it is arguable that the plaintiff has, at least, an equitable charge on the cargo. Consequently, the motion to set aside the arrest is dismissed. With respect to the security motion, the dispute arises because the security offered by the plaintiff is a bank guarantee with a two year time limit. This is not satisfactory. Security which lapses is no security at all. The cargo will not be released unless there is a guarantee by a Canadian chartered bank. If the guarantee has an expiration date, it must also have an evergreen clause stipulating it is to be automatically renewed. If the bank decides not to renew, the guarantee must provide that the agreed amount of security will be deposited with the court.
Practice - Whether agreement to accept LOU vitiated by mistake? - Can more than one sister ship be arrested?
Westshore Terminals Limited v. Leo Ocean S.A. (The Cape Apricot), 2014 FC 136 2014 FCA 231
Précis: The Federal Court of Appeal held that a letter of undertaking given to secure the release of a vessel from arrest was valid and binding and further held that s. 43(8) of the Federal Courts Act did not permit the arrest of multiple vessels.
Facts: The defendant vessel collided with and caused significant damage to a trestle/causeway at the plaintiff’s coal loading facility. As a consequence of the collision, the plaintiff alleged that it had suffered damages in excess of $60 million. Immediately following the collision the plaintiff commenced an action and the defendant vessel was arrested. Counsel for the plaintiff and defendant ship owner then entered into discussions for the release of the vessel from arrest. The ship owner initially offered to provide a letter of undertaking in the amount of US$24 million, being the value of the defendant vessel, as security for the release of the vessel from arrest. Plaintiff’s counsel questioned ship owner’s counsel on the availability of sister ships to increase the value of the security to $100 million. Plaintiff’s counsel also suggested that the vessel be moved from the berth where it was arrested to permit operations at the terminal to resume. Ship owner’s counsel told plaintiff’s counsel that the basis for multiple sister ship arrests was very weak and that, in any event, the sister ships were likely fully mortgaged. Ship owner’s counsel further refused to consent to move the arrested vessel until the security issue was resolved. Plaintiff’s counsel, who had limited maritime law experience, consulted with a maritime law expert and ultimately agreed to accept a letter of undertaking in the amount of US$26 million. The letter of undertaking, which contained a provision that the plaintiff would refrain from arresting sister ships, was delivered to plaintiff’s counsel. The plaintiff then took the position that there was no binding agreement to accept the letter of undertaking as security and that it was free to arrest as many sister ships as necessary to obtain security for the value of its claim. The plaintiff argued that the agreement to accept the letter of undertaking was vitiated by reason of mistake of law (as to the right to arrest multiple sister ships and the amount of security that might be obtained) and coercion/economic duress (for refusing to move the ship from the berth).
At first instance (reported at 2014 FC 136), the motions Judge held the agreement to accept the letter of undertaking was not vitiated by mistake or duress and that, in any event, there was no right to arrest multiple vessels. On the issue of mistake, the motions Judge held that defendant’s counsel owed no duty to plaintiff’s counsel, who was experienced and had the assistance of experienced maritime counsel. With respect to duress, the motions Judge held that although the ship owner may have put pressure on the plaintiff, this did not amount to coercion of will and was not illegitimate. Finally, with respect to the availability of multiple sister ship arrests, the motions Judge held that section 43(8) of the Federal Courts Act did not permit multiple arrests. The plaintiff appealed the decision of the motions Judge respecting the issues of mistake and the availability of multiple arrests. (The duress issue was not appealed.)
Decision: Appeal dismissed.
Held: The motions Judge correctly concluded that there was nothing that vitiated the agreement on the grounds of mistake. The first mistake alleged was that plaintiff’s counsel had been erroneously advised by defendant’s counsel that the right to arrest multiple sister ships was weak. The motions Judge correctly held that defendant’s counsel owed no duty to the plaintiff or plaintiff’s counsel. Moreover, if plaintiff’s counsel was uncertain about the issues he could have consulted with his maritime law expert. The second mistake alleged was plaintiff’s counsel had been erroneously advised by defendant’s counsel that the security was limited to the value of the offending vessel. The motions Judge correctly concluded that this advice was correct. It was clear to all concerned that there was uncertainty as to the right to arrest more than one ship since that issue had never been directly considered by the courts. There is no mistake of law that vitiated the agreement.
The motions Judge further correctly held that there is, in fact, no right to arrest more than one ship. Section 43(2) of the Federal Courts Act allows a party to arrest the ship that causes the damage and section 43(8) allows a party to arrest a ship owned by the beneficial owner of the offending ship. Section 43(8) only deals with the arrest of sister ships. It does not address whether a sister ship can be arrested in addition to the offending vessel. By enacting s. 43(8) Parliament intended only to allow the arrest of a sister ship in lieu of the offending vessel. The fact that Canada did not adopt the Arrest Convention 1952 does not, as the appellant alleges, suggest Canada intended to allow multiple arrests. A claimant has the option of arresting either the offending vessel or a sister ship but not both. If Parliament had intended to allow multiple arrests, a dramatic departure from accepted practice, s. 43 would have been worded differently.
Pleadings - Striking - In Rem Actions - Arrest - Shareholder Dispute - Federal Court Jurisdiction
General MPP Carriers Ltd. v. SCL Bern AG, 2014 FC 571
Précis: The Federal Court has no jurisdiction over a shareholders dispute even though the company was a “one ship company”.
Facts: The plaintiff loaned the first defendant US$5 million for a 40% interest in the defendant ship "SCL Bern". The loan was secured by a shareholders agreement granting the plaintiff 40% of the shares of the second defendant, the owner of the "SCL Bern". The remaining 60% of the shares were owned by the first defendant. The shareholders agreement included provisions concerning a right of first refusal and prohibiting the disposal of shares. In particular, the plaintiff was prohibited from disposing of its shares to third parties but could require the second defendant to purchase its shares at a specified price upon the giving of notice. The plaintiff alleged that it gave the appropriate notice but the second defendant refused to purchase the shares. The plaintiff commenced proceedings in Switzerland and obtained judgement against the second defendant, which was under appeal. The plaintiff then commenced these proceedings and arrested the "SCL Bern". The plaintiff alleged it was a part owner of the "SCL Bern" and that it had suffered damages as a result of the defendant's breach of the shareholders agreement. In the alternative, the plaintiff alleged that the $5 million loaned was secured by a mortgage or charge on the "SCL Bern". The defendants brought this motion to strike the in rem action and set aside the arrest on the basis that the Federal Court had no jurisdiction.
Decision: The in rem action is struck and the arrest set aside.
Held: The test for striking pleadings is whether it is plain and obvious the claim discloses no reasonable cause of action. The onus on the party seeking to strike pleadings is a heavy one. The evidence discloses that the registered owner of the "SCL Bern" is the second defendant and there is no mortgage or charge registered against the vessel. The plaintiff acquired an interest in the shares of the second defendant, not an ownership interest in the vessel. It is quite clear that the plaintiff's claims arise from alleged breaches of the shareholders agreement concerning the sale of shares. The dispute is therefore one of corporate law not maritime law. The subject matter is not so integrally connected to maritime matters as to fall within maritime law.
In Rem Actions - Arrest - Setting Aside - Whether Grinding Dust Damage is Damage Done by a Ship
081768 BC Ltd v. The Ship Aestival, 2013 FC 899
Précis: The Federal Court held that an in rem action was available whenever damage was done by those in charge of a ship with the ship as the instrument.
The plaintiff’s vessel was allegedly damaged by grinding dust that emanated from the defendant vessel while it was undergoing repairs. Both vessels had been hauled out of the water and were on land. The plaintiff commenced in rem proceedings and arrested the defendant vessel. The defendant brought this motion to set aside the arrest on the ground the plaintiff’s claim did not disclose an in rem cause of action in that the damage was not “caused by a ship” as required by section 22(2)(d) of the Federal Courts Act. In the alternative, the defendant asked the court to set bail.
Decision: Bail fixed in the amount of $58,000.
Held: Section 22(2)(d) (which refers to “damage caused by a ship either in collision or otherwise”) is to be interpreted using a functional and operational test. It is not necessary that the ship be engaged in navigation when the damage is done. It is also irrelevant if the ship is in the water, in dry-dock or on land. “Damage caused by a ship” includes damage done by those in charge of a ship with the ship as the noxious instrument. The language of s. 22(2)(d) is broad enough to cover any damage done to a third party by those in charge of the vessel. Pursuant to ss. 43(2) and 22(2)(d) of the Federal Courts Act, the plaintiff’s claim is a valid claim in rem. With respect to bail, the general rule is that bail must be sufficient to cover the plaintiff’s reasonably arguable best case, including interest and costs, but limited by the value of the arrested vessel.
Comment: This decision is in line with previous authority that has generally given a broad interpretation to the term “damage caused by a ship” and a corresponding wider scope for in rem actions.
Jurisdiction - Sale of Property not in Canada
SDV Logistiques (Canada) Inc. v. Dieselgenset Type 8M 25, Engine No. 45085 EX the Barge Andrea, 2013 FC 671
Précis: The court held that it had no jurisdiction to sell property that was not located in Canada.
The plaintiff, at the request of a ship builder, arranged for the pick-up and storage of generators at the Port of Hamburg. The generators were intended to be installed in two vessels being built by the builder. The builder originally paid the storage charges but ran into financial difficulties and ceased to make payments leaving the plaintiff with a debt owing of in excess of $200,000. The plaintiff brought these proceedings in personam against the successor of the builder and the mortgagee of the vessels and also brought in rem proceedings against the generators and other cargo. A Warrant of Arrest was issued but was never served with the result that the action proceeded solely as an in personam action. The plaintiff, nevertheless, brought a motion pursuant to Rule 379 for an order that the generators be sold. At first instance, the Prothonotary refused the order. The plaintiff appealed.
Decision: Appeal dismissed.
Held: Rule 379 cannot be applied because the generators are not and have never been in Canada and there is no evidence the generators are likely to deteriorate. Further, for the court to order the sale of property outside of the jurisdiction, there must be some enabling statutory provision and there is none. Consequently, the court has no jurisdiction to issue the order requested.
Stays of Proceedings - Second action Pending - Setting Aside Arrest
Quin-Sea Fisheries Limited v. The Broadbill I , 2013 FC 575
The plaintiff and defendants entered into an agreement whereby, in consideration of a loan by the plaintiff, the defendants granted a mortgage over the defendant vessel and agreed to make its catch available to the plaintiff for one year following the year the loan was repaid. The loan was repaid but the defendants failed to sell their catch to the plaintiff. As a result, the plaintiff commenced proceedings in the Supreme Court of Newfoundland for a mandatory injunction requiring the defendants to sell their catch to it. That injunction was refused on the grounds that there was no irreparable harm. The plaintiff then commenced these proceedings and arrested the vessel in Federal Court. The defendants brought this motion to stay the Federal Court proceedings on the grounds that parallel proceedings existed in the Supreme Court of Newfoundland.
Decision: Motion dismissed.
Held: The plaintiff was not acting in a vexatious manner when it sought to arrest the vessel after failing to obtain the injunction. The Supreme Court of Newfoundland has no specific admiralty rules dealing with arrest and an injunction is a very different procedure from an action in rem. It is not unusual for a party to take action in the Federal Court merely to obtain security. It would be inappropriate to stay the Federal Court proceedings at this time although at some point in time one of the actions must be stayed.
Carriage by Sea - Application of Hague-Visby Rules - In Rem Actions - Change of Ownership - Damage Done by a Ship
The Mercury XII (aka Wells Fargo) v. The MLT-3, 2012 FC 738 2013 FCA 96
Précis: The Federal Court of Appeal held that the hire of a tug and barge was not a contract of carriage to which the Hague-Visby Rules applied.
The plaintiff's truck was dumped into the water while being loaded onto a barge. At the time, the lines securing the barge to the loading ramp had been untied due to the rising tide. As a consequence, the barge moved away from the ramp when the truck was half on the barge. The driver of the truck applied the air brakes of the truck hoping to stop the movement of the barge away from the ramp but this was unsuccessful and the front end of truck became submerged. The parties then attempted to pull the truck onto the barge by attaching a line between the tug and truck. However, the truck tipped and sank. The plaintiff brought this action in rem against the barge and in personam against the owner/charterer of the tug and barge. In their defence, the defendants alleged the plaintiff was contributorily negligent and that there was no in rem action as the barge was not the instrument of damage. A further issue was whether the one year limitation period in the Hague-Visby Rules applied.
The trial Judge held (cited as Wells Fargo v The Barge "MLT 3", 2012 FC 738) that the defendants were 90% at fault and the plaintiff 10%. The defendants were negligent for loading the truck without having the mooring lines attached. The plaintiff was negligent for applying the air brakes. Concerning the existence of a claim in rem against the barge, the trial Judge held s. 22(2)(d) of the Federal Courts Act requires that "the ship itself must be the actual instrument by which the damage was done". As the barge was not the actual instrument of the damage, he held there was no claim under s. 22(2)(d) and no action in rem. With respect to the application of the one year limitation period in the Hague-Visby Rules, the trial Judge noted that section 43(2) of the Marine Liability Act provides that the rules apply to domestic carriage "unless there is no bill of lading and the contract stipulates that the Rules do not apply". The trial Judge held, however, that the lack of a bill of lading was sufficient by itself to oust the Rules. He said “oral contracts not evidenced by or incorporated into a bill of lading or similar document are not caught by subsection 43(2) of the Marine Liability Act”. The defendants appealed the ruling that that the one year limitation period in the Hague-Visby Rules did not apply.
Decision: Appeal dismissed.
Held: The trial Judge decided this issue on a grounds that had not been argued before him and the parties were in agreement that the Judge was wrong in holding that s. 43(2) of the Marine Liability Act limits the application of the Hague-Visby Rules to written contracts. The conclusion of the trial Judge was, nevertheless, correct. The appellant must prove all elements of s. 43(2) for the Rules to apply. The respondent argued that the contract was not “from one place in Canada to another place in Canada” since the contract was for a round-trip. This is “an unduly formalistic interpretation”. However, the respondent’s argument that there was no contract for the carriage of goods is accepted. A contract for the carriage of goods within the meaning of s. 43(2) does not include a contract for the charter or hire of a vessel. The plaintiff has not proven a contract for the carriage of goods. In fact, the evidence suggests a contract of hire rather than a contract of carriage. The contract was “for the use of the Tug and Barge” and charges were “on an hourly basis” regardless of whether there was cargo on the barge.
Comment: The parties also addressed whether the trial Judge had erred in holding the Hague-Visby Rules did not apply simply because no bill of lading had been issued. The Federal Court of Appeal did not address these arguments since it concluded the Rules did not apply on other grounds.
Federal Court Jurisdiction - Action vs Provincial Crown - In Rem Proceedings
Canada v. Toney, 2011 FC 1440 2012 FCA 167
This was an in rem and in personam action against both the federal and provincial crowns and a vessel owned by the Alberta government. The action concerned a fatal accident that occurred on an Alberta lake. The plaintiffs alleged that the defendants were negligent in their performance of search and rescue duties. The Alberta defendants moved to strike the in rem action on the basis that the vessel had been sold prior to the commencement of the action and also moved to strike the in personam action against them on the basis that actions against a provincial crown should be commenced in the provincial courts. The federal defendants also moved to stay the action or to have it struck as an abuse of process. At first instance, the trial Judge allowed the motions only with respect to the action in rem. The trial Judge held that the sale of the vessel prior to the commencement of the action did defeat the action in rem but it did not affect the action in personam. The trial Judge (2011 FC 40) held that the fact one of the defendants was a provincial crown was irrelevant as the action (and the Federal Court’s jurisdiction) was not grounded in s. 17 of the Federal Courts Act (which governs actions against the Federal Crown) but in s.6 and following of the Marine Liability Act. The Alberta defendants appealed.
Decision: Appeal dismissed.
Held: The Federal Court of Appeal Court noted that it was undisputed the plaintiffs’ claims fall within the subject of navigation and shipping and within the express terms of section 22 of the Federal Courts Act. It was not plain and obvious that the Federal Court was without jurisdiction.
Comment: In Toney v. Canada, 2012 FC 1412, the same point was brought to the court on a question of law (as opposed to the above case which was a motion to strike). At first instance the Federal Court held that it had jurisdiction in personam against a province in a maritime matter. However, on appeal, at 2013 FCA 217, the Federal Court of Appeal held that the Federal Court has no jurisdiction over a provincial crown.
In Rem Actions – Time Charters – Presumption - Liens - Ship Suppliers
World Fuel Services Corporation v. Nordems (Ship), 2011 FCA 73
This case probes the extent to which American maritime liens will be recognized by Canadian courts. Essentially, the issue was whether an American maritime lien would be recognized where bunkers were supplied to a ship under time charter outside of the United States or Canada and pursuant to a contract between the supplier and the time charterer. The bunker supply contract contained terms to the effect that: the bunkers were supplied on the faith and credit of the ship and her owners; the supplier was to have a lien over the vessel; and the supply contract was subject to U.S. law. The time charter party contract, on the other hand, contained the usual terms that the charterer was responsible for fuel and was prohibited from incurring liens. At first instance (2010 FC 332
) the Judge held the charterer had no authority, express or implied, to bind the owners to the supply contract and that therefore there was no in personam liability on the part of the owners to support a claim in rem. In reaching this conclusion, the Judge noted that the presumption as to the authority of a time charterer under Canadian law is much weaker than under U.S. law. Under U.S. law the presumption can only be rebutted by showing the supplier had actual knowledge of lack of authority whereas under Canadian law less than actual knowledge is necessary. The Judge found that the supplier’s own terms and conditions referred to commercial ship registries such as Lloyds which identified the vessel’s owner and held that the supplier was therefore on notice and should have verified whether the charterer had authority. The Judge next considered whether American law applied to the transaction and looked at the various connecting factors. In doing so he noted that because the owners were not a party to the supply contract the U.S. choice of law clause in the contract was of less significance than otherwise. He ultimately found that the applicable law was the place of the supply of the bunkers, which was South Africa, and as South African law had not been pleaded or proven, he applied Canadian law. Although the Judge had held that U.S. law was not applicable to the transaction, he nevertheless continued to decide whether U.S. law would recognize a maritime lien under circumstances where bunkers were supplied to a time charterer of a non-American ship outside of a U.S. port. He reviewed the affidavits of American attorneys that had been put before him and the various U.S. authorities and ultimately concluded that U.S. law would not recognize a lien under the circumstances.
On appeal, the Federal Court of Appeal dealt first with the presumption and then with the applicable law. On the presumption issue the Appellate Court agreed with the Trial Judge that the presumption was weaker under Canadian law than under American law. The Court said that the relevant question under Canadian law is whether there was behaviour or conduct on the part of the shipowner that would lead a supplier to believe the charterer was authorized to contract on the owner’s behalf or on the credit of the ship. In the absence of any “holding out”, the owner is not liable. The Court further noted that there is a duty on the supplier to make inquiries. Applying these principles to the facts of the case the Court held that the supplier knew or ought to have known that the charterer was not the owner and ought to have made inquiries. The Court further found that there was no “holding out” by the owner. The Court then turned to the question of applicable law and specifically to the question of what weight should be given to the choice of law clause in the supply contract. The Court held that where the owner was not a party to the supply contract the choice of law clause should be given no weight. The Court further refused to interfere with the Trial Judge’s balancing of the various factors and dismissed the appeal. The Court of Appeal did not address the Trial Judge’s finding as to whether U.S. law would recognize a lien in the circumstances.
Practice - Arrest - Setting Aside - Crown Immunity
Artificial Reef Society of Nova Scotia v. Canada, 2010 FC 865 (CanLII)
The plaintiff in this matter arrested a decommissioned naval vessel. Although it is not obvious from the reported reasons, the plaintiff appears to have alleged an agreement with the Crown for the transfer of the vessel to it but the Crown intended to have the vessel scrapped. In any event, the vessel was arrested at the instance of the plaintiff and the Crown brought this application to set aside the arrest. The Court held that pursuant to s. 14 of the Crown Liability and Proceedings Act proceedings against the Crown must be in personam only and in rem actions are not permissible. Accordingly, the arrest was set aside.
Practice - In Rem Actions - Arrest - Setting Aside
Morecorp Holdings Ltd. v. Island Tug & Barge Ltd., 2009 BCSC 1614
This was an application to set aside the arrest of the “ITB Pioneer”. The case concerned various allegations of breaches of a share purchase agreement between the parties. The plaintiff alleged, inter alia, that it was a term of the share purchase agreement that the parties would enter into a further agreement whereby the plaintiff‟s tugs would be used to deliver cargo to smaller communities on the British Columbia coast. This further agreement was never concluded and the defendants used their own tug, the “ITB Pioneer”, to supply these communities. The Court held that none of the plaintiff‟s claims related to any aspect of maritime law in which the “ITB Pioneer” can be said to have been involved. The Court noted that there may have been a maritime claim against the cargo under s.22(1)(i) of the Federal Courts Act but did not decide on that issue. The Court set aside the arrest warrant and dismissed the in rem claims.
Admiralty Practice - In Rem Actions - Arrest
Dragage Verreault Inc. v. The Atchafalaya, 2009 FC 273
This matter arose out of a contract for the dredging of a channel. The plaintiff was the head contractor under the dredging contract. The plaintiff subcontracted the job to a company known as B+B Dredging. The contract specified the work was to be done by the "Atchafalaya" which was owned by a company called Proteus and under bareboat charter to B+B. The plaintiff alleged there was delay on the part of the defendants in bringing the "Atchafalaya" on site as a consequence of which the plaintiff incurred liabilities under the head contract. The plaintiff commenced this in rem action and arrested the "Atchafalaya". The owner of the "Atchafalaya" brought this motion to set aside the arrest and strike the in rem action on the grounds that there was no in personam liability of the owner to support the action in rem. The motions Judge however found that there were some representations during the course of the contract negotiations that indicated the principal of B+B (who was also the principal of Proteus) had the authority to contract on the credit of the ship. Accordingly, the motion was refused. (See the associated action Keybank National Assoc. v The “Atchafalaya”, 2010 FC 406)
Admiralty Practice - Arrest of Cargo - Sufficiency of Affidavit to Lead Warrant - Pleading
Kremikovtzi Trade v. Phoenix Bulk Carriers Ltd., 2007 FCA 381
This was a claim in rem against the owners and all others interested in a particular cargo. This particular application was a re-hearing of various issues that had been referred back to the Court of Appeal after the Supreme Court of Canada overturned the Court of Appeal on the issue of in rem jurisdiction in Phoenix Bulk Carriers Ltd. v. Kremikovtzi Trade, 2007 SCC 13 (CanLII). The issues now considered were first, whether the affidavit to lead warrant was sufficient and second whether the Statement of Claim should be struck on the grounds that did not disclose a cause of action or was otherwise scandalous, frivolous or vexatious. Regarding the Affidavit to Lead Warrant, the Defendant argued that the affidavit did not disclose the basis for invoking the court’s in rem jurisdiction as required by the Rules. However, the affidavit specifically referred to the subsections of s.22 and 43 relied upon and the Court held that this was sufficient. With respect to the Statement of Claim, it was alleged the claim was deficient in that it did not contain an in personam claim to support the in rem claim. The Court agreed that there could be no in rem claim without an in personam claim however the Court noted the Statement of Claim contained an allegation that the owners of the cargo at the time of the breach of contract were the owners at the time of the commencement of the action and held that this supported an in personam claim. Finally the Court considered whether Kremikovtzi was the beneficial owner of the cargo at the time the cause of action arose and at the time of commencement of the action. The Court noted that the issue was a difficult one but ultimately concluded that it was at least arguable and hence the Statement of Claim was not frivolous and vexatious.
In Rem Proceedings - Arrest – Sistership
F.C. Yachts Ltd. v. Vessel Bearing Hull No. QFY10703E709 (Yacht), 2007 FC 1257
The Plaintiff builder was building two yachts for the Defendant. The first yacht was substantially completed and payments were up to date. The Defendant was, however, alleged to be in arrears on the payments in respect of the second yacht. The builder commenced proceedings in respect of the second yacht but arrested the first yacht as a sistership to the second yacht. The Defendant brought this application to set aside the in rem action and the arrest. The Defendant argued that it was not the “beneficial owner” of the first yacht or the owner of the second yacht. The recorded owner of both yachts was the Plaintiff but the construction contracts provided that title was to be transferred to the Defendant upon completion. Moreover, the Defendant was the mortgagee in respect of both yachts. On these facts, the Court held that the Defendant’s interest in the first yacht was exactly what the contract documents said, it was the mortgagee and not the beneficial owner. In result, the in rem actions were struck and the arrest was set aside.
Arrest – Contempt
Labrador Sea Products Incorporated v. Northern Auk (Ship), 2007 FC 679
In this matter the Defendants had apparently removed fishing gear and other equipment from a vessel that was under arrest. The Court found the Defendants guilty of contempt, fined them $5,000 each and ordered that they pay costs fixed at $15,000. The Court noted that the requirements for contempt are: 1. the party alleging contempt has the burden of proving it; 2. the elements must be proved beyond a reasonable doubt; 3. what must be established is knowledge of the existence of the Order and knowing disobedience; and 4. mens rea or good faith is relevant only as to mitigation.
Admiralty Practice - In Rem Actions – Stay
Maritima de Ecologia, S.A. de C.V. v. Maersk Defender (Ship), 2007 FCA 194
In this matter Secunda discussed with the Appellant an arrangement whereby Secunda, or a company controlled by it, would purchase the Maersk Defender, modify the vessel to meet the requirements of the Appellant and then charter the vessel to the Appellant. Subsequently Atlantic, a company controlled by Secunda, entered into an agreement with Maersk to purchase the vessel and entered into a charter party with the Appellant. However, before the purchase could take effect, Secunda and Atlantic learned that Mexican authorities would not issue the required permits for longer than two years. As a result, Atlantic advised the Appellant that the charter party had been frustrated and in response the Appellant commenced arbitration proceedings. On 4 December 2006 the Appellant commenced an action in the Federal Court against the Maersk Defender in rem and against Secunda and Atlantic in personam. On 12 December the Maersk Defender was sold by Maersk to a company called Pacific. Also, on 12 December 2006 a second action was commenced in the Federal Court against the Maersk Defender in rem and against Secunda, Atlantic and Pacific in personam. Both actions were said to be “for the sole purpose of obtaining interim protective orders”. The Maersk Defender was arrested in the second action; however title had already been transferred to Pacific by the time of the arrest. The Respondents brought an application to strike the in rem and the in personam proceedings against Secunda and Pacific. At first instance, the motions Judge struck the in rem proceeding and stayed the in personam proceedings. On appeal, the Court of Appeal held that the in rem proceedings should be struck on two grounds. First, at the time of the commencement of the second action the vessel had been sold and therefore the requirement of s.43(2) that there be the same beneficial owner at the time of commencement of the action as at the time the cause of action arose had not been met. Second, and in any event, there was no personal liability on the part of the owner of the vessel to support the in rem jurisdiction. The Appellants claim in the arbitration was only against Atlantic and Atlantic was never the owner of the vessel. With respect to the in personam claims, the Court of Appeal held that because the actions were commenced solely for the purpose of obtaining security for the arbitration proceeding against Atlantic, there was no remedy sought against Secunda and Atlantic and the in personam claims against them must be struck.