Shelburne (Town) v. The Farley Mowatt, 2017 FC 1184 (2017-12-21)
Facts: The plaintiff was the operator of a marine terminal and marina. The plaintiff and defendant entered into a “Berthing Agreement” pursuant to which the defendant was permitted to berth the defendant vessel at the marina. While the defendant was in arrears on the moorage, the vessel sank at the marina. The vessel was refloated by the Canadian Coast Guard and the plaintiff also incurred some expenses in relation to the refloating. The plaintiff commenced this proceeding to those expenses, moorage and its legal costs. The defendant counterclaimed alleging the plaintiff prevented him from accessing the vessel which led to the sinking. Subsequently, the court made several orders requiring the defendant to remove the vessel from the marina. The defendant failed to do so and was arrested and imprisoned. The plaintiff then brought this motion for summary judgement.
Decision: Judgement granted.
Held: The plaintiff is awarded the berthing fees to which it is entitled under the Berthing Agreement. The plaintiff is additionally entitled to the costs incurred in connection with the sinking and refloating of the vessel. With respect to the counterclaim, there is no evidence that any actions or omissions of the plaintiff contributed to the damage to the defendant vessel. The plaintiff is also entitled to recover its legal fees directly related to the recovery of the unpaid berthage fees as provide for in the Berthing Agreement.