T-2934-76
International Marine Banking Co. Limited
(Plaintiff)
v.
The M/T Dora and Abyreuth Shipping Company
Limited (Defendants)
[No. 1]
Trial Division, Thurlow A.C.J.—Montreal,
August 16 and 18, 1976.
Maritime law—Practice—Motion for retroactive sanction
ing by Court order of action taken by plaintiff before expira
tion of time for entering appearance or filing defence—Proper
procedure in respect of arrest of vessels—No authority under
statute or Rules for making such order—Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 13 and 55—Federal Court
Rules 1003 and 1007(4)—Federal Court Forms 40-44.
Plaintiff claims order appointing agents to ensure care and
maintenance of vessel pending sale, payment of skeleton crew,
repatriation of remaining crew and providing for reimburse
ment of necessary expenditures by plaintiffs out of proceeds of
sale as if they were part of the marshal's costs and expenses.
Vessel was arrested on basis of claim on three mortgages on
July 27, 1976, at berth of Golden Eagle Canada Limited in
Quebec harbour and moved to berth in section 30 of Quebec
harbour on August 1, 1976. Plaintiff appointed agents to
provide for needs of vessel pending sale without approval or
authority of Court. Motion for retroactive sanctioning of these
acts by Court was opposed by counsel for master and crew at
whose suit vessel is also under arrest in an action for wages and
by counsel for intervenant in master's action. The only applica
tion for removal of vessel was included in the written notice of
motion and was withdrawn in open Court.
Federal Court procedure in respect of arrest of vessels is
prescribed by Rule 1003. Rule 1007(4) relied on by the plain
tiff provides that the Court may make any order for safety and
preservation of ship or cargo under arrest and that appraise -
ment, sale and removal of property shall be effected under
authority of commission addressed to the marshal (Forms 40 to
44). Sections 13 and 55 of the Federal Court Act provide for
the appointment and duties of marshals.
Held, the application is dismissed. The object of Rule
1003(10) is to make it clear that possession of and responsibili
ty for arrested vessel or property does not change on arrest.
Furthermore, when possession is ordered to be taken from the
party in possession at the time of arrest, it is the marshal who is
authorized to act and not an agent (as sought in the applica
tion) who would have to be the Court's agent. As no sheriffs
have been appointed under subsection 13(1), the sheriff of
Quebec is ex officio the marshal. By subsection 55(4) it follows
that any order of the Court must be directed to him. On the
material before the Court there appears to be no reason for
circumventing the system prescribed by the statute.
APPLICATION for retroactive order.
COUNSEL:
G. Vaillancourt for plaintiff.
V. Prager for M/T Dora.
M, Nadon for Trans Asiatic Oil Ltd.
M. Savard for Golden Eagle Canada Limited.
P. Q. Davidson for Pera Shipping Corp.
E. Baudry for Clipper Ship Supply Ltd. and
Hitachi Shipbuilding and Engineering.
F. de B. Gravel and S. Harrington for Joseph
Christopher Twite.
SOLICITORS:
Langlois, Drouin & Laflamme, Quebec, for
plaintiff.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for M/T Dora.
Martineau, Walker, Allison, Beaulieu,
Phelan & Mackell, Montreal, for Trans
Asiatic Oil Ltd.
Chauvin, Marler & Baudry, Montreal, for
Golden Eagle Canada Limited, Clipper Ship
Supply Ltd. and Hitachi Shipbuilding and
Engineering.
Brisset, Bishop & Davidson, Montreal, for
Pera Shipping Corp.
Gravel & Associates, Quebec, for Joseph
Christopher Twite.
The following are the reasons for order deliv
ered orally in English by
THURLOW A.C.J.: This is an application by the
plaintiff for an order:
(1) THAT, effective, August 1st, 1976, Ramsey Greig & Com
pany Limited be appointed as agents for the vessel to take such
steps as may be necessary, including the appointment of secu
rity guards, to ensure the care and maintenance of the vessel
until she shall have been sold and to assist in the payment of a
skeleton crew and repatriation of the remaining crewmembers;
(2) THAT, to preserve the vessel and her machinery, there shall
remain on board pending the sale of the vessel a skeleton crew
of 17 officers and men including the master, two deck officers,
three engineers, four seamen, two greasers, two cooks, two
stewards, one engine-room storeman, such officers and seamen
to be nominated by the master and the remaining crewmembers
to be repatriated;
(3) THAT all the disbursements made by the agents and paid in
the first instance by the Plaintiff be reimbursed to the Plaintiff
out of the proceeds of the sale as if they form part of the
Marshal's costs and expenses, such disbursements to include
the agency fee, all costs of the vessel being shifted from her
present position according to the requirements of the Port
Authorities, including the tugs and pilotage services and gener
ally all and any expenses made with a view to preserve and
safeguard the ship to keep her in an operating order such as the
repairs of the two electric motors of the steering gear and
including also the wages of the full crew from August 4th, 1976
until the skeleton crew be formed and thereafter the wages of
the skeleton crew;
(4) THAT the cost of an incidental to this application shall be
cost in the cause.
The action was commenced on July 27, 1976. A
warrant was issued and the defendant ship was
arrested the same day. The claim is upon three
mortgages for amounts totalling some $9,000,000.
The time for entering an appearance or filing a
defence has not expired.
The vessel is a tanker of some 95,000 tons
dead-weight. When arrested she was at the berth
of Golden Eagle Canada Limited in the harbour of
Quebec. On August 1st she was moved to a berth
known as section 30 in the harbour of Quebec. In
the recitals contained in the notice of motion it is
stated that
the Plaintiff appointed Messrs. Ramsey Greig & Company
Limited as vessel's agents to provide for the needs of the vessel
pending sale, to advise with respect to such steps as may be
required to preserve her and to assist with regard to the
payment of wages to the crew and repatriation of some of the
crewmembers.
This was done without the approval or authority
of the Court. What is now sought is an order
retroactively sanctioning it as the action of the
Court and authorizing it for the future until the
vessel is sold. The motion was opposed by counsel
for the master and crew at whose suit the vessel is
also under arrest in an action for wages. Their
position was that it would be preferable to put the
marshal in possession and let him employ an agent
as his assistant. The motion was also opposed by
counsel for an intervenant in the master's action
whose position was that there was no authority for
the plaintiff -to appoint an agent directly and that
the order sought should not be granted.
I pause to refer to paragraph 8 of the notice of
motion which recites that:
the owners of the cargo made a verbal motion to obtain that the
vessel be shifted to section 30 in the Port of Quebec, the said
motion to be put in proper written form and the order to such
effect to be endorsed by the Honourable Chief Justice Thurlow,
all parties consenting thereto.
This appears to suggest that the moving of the
vessel was carried out under the authority of the
Court. That however is not the case. The vessel
was not moved to section 30 pursuant to any order
or approval of the Court. The only application
made for that purpose was that included in the
written notice of motion and it was withdrawn in
open Court.
The procedure of this Court in respect to the
arrest of vessels is prescribed by Rule 1003 by
which it is provided inter alia as follows:
(6) The warrant shall be served by the marshal, or any person
lawfully authorized to act in his stead, in the manner prescribed
by these Rules for the service of a statement of claim or
declaration in an action in rem, and thereupon the property
shall be deemed to be arrested.
(9) Service of a warrant under paragraph (6) does not vest
possession in, or impose responsibility for the care and mainte
nance of the property arrested on, the marshal or other officer
by whom the seizure was effected, but such possession and
responsibility shall continue in the persons in possession of the
property immediately before the arrest. No such property,
while under arrest, shall be moved without the authority of the
Court or the consent of all interested parties.
(10) Upon application of any interested party, the Court may
order the marshal, or any person lawfully authorized to act in
his stead, to take possession of property that has been arrested
under this Rule, but no such order shall be made until the
applicant, or some other interested party, has assumed responsi
bility to the marshal or other such person for any costs or fees
incurred or earned by him in carrying out such order and has
given security satisfactory to the Court for the payment thereof
from time to time as demanded.
(11) In these Rules, "marshal" includes any person falling
within section 55(5) of the Act.
By Rule 1007(4), which was relied on by the
plaintiff as authority for the order sought, it is
provided that:
(4) The Court may, either before or after final judgment,
order any property under arrest of the Court to be removed, or
any cargo under arrest on board ship to be discharged; and
generally, after the institution of an action, may make any
order or decree for the safety and preservation of any ship or
cargo under arrest, as well as any order for the disposal of
perishable goods under arrest, on such terms as it may deem
proper.
Paragraph (5) of the same Rule reads:
(5) The appraisement, sale, removal of property, and the
discharge of cargo shall be effected under the authority of a
commission addressed to the marshal. (Forms 40 to 44).
With respect to who may be regarded as a
marshal sections 13 and 55 of the Federal Court
Act' provide:
13. (1) The Governor in Council may appoint a sheriff of
the Court for any geographical area.
(2) Where no sheriff is appointed under subsection (1) for a
geographical area, the sheriff and deputy sheriffs of the county
or other judicial division or part thereof within that geograph
ical area who are appointed under provincial law are ex officio
sheriff and deputy sheriffs, respectively, of the Court.
(3) The Rules may provide for the appointment of deputy
sheriffs.
(4) Every sheriff of the Court is ex officio a marshal of the
Court and every deputy sheriff of the Court is ex officio a
deputy marshal of the Court.
55. (4) A sheriff or marshal shall execute the process of the
Court that is directed to him whether or not it requires him to
act outside his geographical jurisdiction, and shall perform such
other duties as may be expressly or impliedly assigned to him
by the Rules.
(5) In any case where there is no sheriff or marshal or a
sheriff or marshal is unable or unwilling to act, the process
shall be directed to a deputy sheriff or deputy marshal, or to
such other person as may be provided by the Rules or by a
special order of the Court made for a particular case and any
such person is entitled to take and retain for his own use such
fees as may be provided by the Rules or such special order.
In my opinion the order sought cannot properly
be granted under the Rules I have cited. The
object of Rule 1003(10) is to make it clear that the
possession of and responsibility for an arrested
vessel or arrested property does not change by
reason of the arrest but continues in the person in
possession at the time of the arrest. It will not vest
' R.S.C. 1970, c. 10 (2nd Supp.) as amended.
in the marshal until he takes possession under an
order of the Court, which will not be granted until
the security for his fees and costs as required by
Rule 1003 (11) has been provided. It is also impor
tant to note that when under the scheme of these
Rules possession is to be taken from the party in
possession at the time of arrest, it is the marshal or
other person lawfully authorized to act in his stead
that the Court authorizes to take possession. Here,
however, what is sought is an order appointing an
agent for the ship and it appears to me that the
effect of such an order would be to take the
possession of the ship from whoever has been in
possession and vest it in an agent who, if he is to be
appointed by the Court, must, as it seems to me,
be the Court's agent.
Whether an agent can be given such authority
turns on the sections of the Act which I have cited.
As no sheriffs have been appointed under subsec
tion 13(1), subsections 13(2) and (4) come into
play. The effect is that the sheriff of Quebec
appointed under the law of the Province is ex
officio the marshal of the Court for his county. By
subsection 55(4) he is to execute the process of the
Court directed to him and perform such other
duties as may be expressly or impliedly assigned to
him by the Rules.
It appears to me to follow that any order of the
Court to take possession of the arrested vessel
should be directed to him and that it is only in the
event, referred to in subsection 55(5), that he is
"unable or unwilling to act", of which there is no
evidence, that there is authority to direct process
to a deputy or "other person as may be provided
by the Rules or by a special order of the Court
made for a particular case".
There is thus in my opinion, on the material
before the Court, no authority under the statute
and Rules for ordering anyone but the marshal to
take possession of the vessel and there appears to
be no basis upon which or reason why the system
prescribed and contemplated by the statute and
Rules can or should be circumvented by the
appointment of an agent by the Court to, in effect,
assume the possession of and responsibility for the
vessel. Even if the case were one for the making of
a special order for the particular case it would still
be necessary to proceed under Rule 1003(11) to
obtain the order to authorize the person designated
to take possession and that would involve the
giving of the security required by that Rule.
Counsel for the plaintiff referred in argument to
the case of the Gwendolen Isle 2 where one of the
paragraphs of an order for advertisement and sale
of the vessel contained a provision for the appoint
ment retroactively of an agent to attend to the
maintenance of the vessel pending the sale. The
file, however, contains no reasons for the making
of such an order and it does not appear that the
question involved in the present case was raised or
discussed. I do not think, therefore, that the case
should be regarded as having determined or settled
the practice. The order sought will therefore be
refused.
In the course of argument I suggested to counsel
for the plaintiff that the case might be one for an
order, under Rule 1003 (11), to the marshal to take
possession and who might then under an order be
authorized to secure necessary assistance including
an agent for the preservation and maintenance of
the vessel but I understood counsel to be not
interested in proceeding in that way.
Accordingly the application will be dismissed.
2 (File T-700-72, unreported).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.