86 EXCHEQUER COURT REPORTS. Vol.. XX. 1920 BRITISH COLUMBIA ADMIRALTY DISTRICT. August 10th Statement of HALEY ET AL, PLAINTIFFS. Facts. VS. SS. "COMOX," DEFENDANT. Shipping—Action for necessaries—Jurisdiction—Effect of entry in register---Admissibility of evidence to contradict.-24 Vict., ch. 10, s. 5; 53-54 Vict., ch. 27; (Imp.) R.S.C. (1906) ch. 141. The SS. Comox was registered at the Port of Vancouver, B.C., and was owned by the H. S. Company, having its head office at the same port. While she was at the port of New Westminster, B.C., •p laintiff supplied her with necessaries such as material and labour to refit her, and not being paid, action was taken in Vancouver to recover price thereof. The said H. S. Company was practically one Captain Woodside who was domiciled in San Francisco, U.S.A., being the owner of 995 shares of a total of 1,000 shares, capital stock of said Company. Held, That notwithstanding the SS. Comox was registered in Van-couver, her home port was really San Francisco where the true owner thereof was domiciled; that she was a foreign vessel and that the court bad jurisdiction in the matter under section 5, eh. 10, 24 Vict., and 53-54 Vict., eh. 27, sec. 3 (Imp.) 2. That evidence may be admitted to contradict entry in the ship's register to show the true owner and home port of the vessel. The Polzeath (1), the St. Tudno (2), the Proton (3); and the Hamborn (4) ; referred to. In this case the plaintiff sued for necessaries supplied in the shape of material and labour in refitting the defendants' ship at New Westminster in the Province of British Columbia. The Defendants objected to the jurisdiction of the Court and alleged that the ship belonged to the port of Vancouver, on the ground that she was owned by the Henrietta Ship Company having its head office at the Port of (1) 1916, P.D. 241. (3) 1918, A.G. 578. (2) 1916, P.D. 291. (4) 1918, P.D. 19.
VoL. XX. EXCHEQUER COURT REPORTS. . 87 Vancouver, but the evidence showed that of a thou-192° sand shares of stock which comprised the 'capital H LEY ET w stock of the Henrietta Ship Company, nine hundred ss. Comox. and ninety-five shares were owned by Captain Wood- sta cts t o side who lived and, was domiciled in San Francisco. Captain Woodside's wife and son the other direct-drs of the Company, lived and were domiciled at San Francisco, and it was argued by Counsel for the plaintiff, Mr. E. C. Mayers, that therefore the ship was really owned in San Francisco, and was . a foreign ship and that, in consequence Section 5 of the Admiralty Courts Act of 1861 applied. The following cases were cited in support of the contention that the court should look behind the Register of the ship to ascertain the true ownership :— The Polzeath. (1) ; the St. Tudno (2) ; the Proton' (3) ; the Hamborn (4) . By the Admiralty Courts Act, 1861, being 24 Vict., Chap. X, sec. 5, the High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the court that at the time of the institution of the cause, any owner or part owner of the ship is domi -• cited in England or Wales .. . . . By the Colonial Courts of Admiralty `Act, 1890, 53-54 Vict., Chap. 27, the word "Canada" • is substituted for "England and Wales." The case was tried at Vancouver on the 19th, 20th and 21st days of July, 1920, before the Honourable Mr. Justice Martin. - (1) 1916, P.D. 241. (3) 1918, A.C. 578. (2) 1916, P.D. 291. (4) 1918, P.D. 19.
88 EXCHEQUER COURT REPORTS. VOL. XX. 1920 E. C. Mayers, and G. L. 'Fraser, counsel for HALE V Y ET AL plaintiffs; se. c°'n°x. C. B. McNeill, K.C., counsel for defendant. Reasons for Judgment. Archer Martin, L.J.A., now (this 9th of August, 1920) delivered judgment. "This is an action claiming $19,258.29 for necessaries supplied in the shape of material and labour in refitting the defendant ship at New Westminster in this Province. An objection is taken to the jurisdiction founded on the submission that the ship belongs to the port of Vancouver and that she is owned by the Henrietta Ship Company, a Canadian Company with head office at that port, but I have no hesitation whatever in finding upon the evidence that whatever the documents may pretend to show, her homë port is in San Francisco and her true owne'r is Alexander Woodside domiciled there. Part of the work was done under a written contract dated the 12th February, 1920, for $13,100, and the balance under a later verbal one: the submission that the plaintiffs' right to recover was dependent upon the owner being able to obtain classification from the British Corporation or otherwise. is not supported. I find as a whole that the work done under both contracts was a fair job of its class, and the prices charged were reasonable, which leaves only a few items that require particular notice.. The main one relates to the engine, etc., under this clause of the written contract:— " All propelling machinery to be installed complete with auxiliaries and pumps, also cargo winches. The above items to be supplied by the owners ready to install. It is assumed that the present tail shaft and propeller will be used."
VOL. XX. EXCHEQUER COURT REPORTS. 89 It is submitted that under this clause the plaintiffs 'w were required to supply thè engine bed and therefore HALE Y ET AL v. a large number of items in their bill covering the es. Comex. considerable cost of that work, about $5,000, should Reasons for Judgment. be disallowed. In the Oxford Dictionary I find these definitions :— Install (2) To place (an apparatus, a system of ventilation, lighting, heating, or the like) in position for service or use: . Installation (2) The action , of setting up or fixing in position for service or use (machinery, apparatus, or the like); a mechanical apparatus set. up or put in position for use; spec. used to include all the necessary plant, materials and work required to equip rooms or buildings with electric light. • - The main idea of "installing" thus conveyed is to place or set up in position for use, and though in certain circumstances and some trades it may have' a special or wider meaning, yet there is nothing in the circumstances of this case to so enlarge it. I am of the opinion that it was and must have been in the contemplation of ,the parties that the new engine was to be placed in position upon a bed sufficient for that purpose already in '"place" in the ship. The state- ment of the witness Lockhart, marine engineer, on cross-examination, that it meant the plaintiffs 'were to get the engine, auxiliaries and pumps from the owner "ready to install" and then couple them up for sea in the ship's engine room seems the reasonable view to take of the situation,-and it is, moreover, supported by the correspondence between the parties, even if the blue print, Ex. 38; is to be discarded in this con- nection, as is rightly, I think, submitted by defend- , ant's counsel, it being merely an over-All dimension
90 EXCHEQUER COURT REPORTS. VOL. XX. 1920 plan, as explained by the witness Akhurst. Therefore HALEY ET AL V. said items covering the cost of the engine bed will be SS. Comoz. allowed. Reasons for Judgment. As to certain "hardwood" items, it is clear from the evidence that unless otherwise specified by name local shipwrights include Douglas fir under that category and that wood was in fact used, therefore the items are allowed. With respect to the two wing tanks for oil, that question has occasioned me the most difficulty but after a careful consideration of the evidence and the circumstances I have reached the conclusion that the owner, Woodside, hàs so acted that he must be held to have accepted them after full knowledge of the result of the test, and their capacity, if the plaintiff Christian's evidence is to be believed, and I prefer it to Woodside's; the latter did not insist upon larger tanks being substituted, as the plaintiffs offered to do, because they would reduce the cargo space, and, consequently, earning power, and it is difficult to understand, if his objection were so serious as now put forward, why he nevertheless put to' sea without any further alterations to them: as they are now with a capacity of 3,800 gallons, instead of the 5,000 as specified for, they still give a 19 day voyage range on the engine consumption of 200 gallons per day, which he doubtless agreed to regard as sufficient; furthermore, his representative, Wallace, agreed to test them though he knew their capacity was short and that they were not 4" plate and did not order them to be taken out after the test, though he had the power to do so, simply because it would have delayed the vessel in sailing. I am of the opinion, on the whole aspect of this item, that it is too late for the owner to successfully contest it.
VoL. XX. "EXCHEQUER COURT REPORTS. 91 There are five items, however, which the owner is 1-)..2-°entitled to have disallowed, viz., those charged for the HALEvET AL time occupied in purchasing materials, under these Ss. comm. Rcasans F o headings in the monthly "Statement ô f Wages :"— Judgmen t. r J. F. Haley, looking after extra' materials, work $ 125.00 Overhead (April). 83.33 Do. • (May) 83 22 Do. (June 1st half). 125.00 Do. (June 2nd half). 125.00 $ 541.55 The verbal contract was that the plaintiffs were to purchase the material and supply the labour and do the work on a percentagé of 20 per cent of the cost, and it is submitted that the time occupied in purchasing is part of the overhead cost of labour and that as in this case the plaintiffs did not include their office expenses in "overhead" they are entitled to exclude non-productive work outside the office, that is, instead of including in "overhead" the office administrative expenses they excluded them and therefore should be allowed for them as time occupied in the "labour" of purchasing. But I am of opinion that, while it may be the plaintiffs made an error in excluding their general expenses from "overhead" and estimated too low as pointed out by witness Lockhart, yet nevertheless that was the contract they made and if they made .a mistake in it they must bear the loss, so con- • sequently the said five items will be disallowed. judgment will be entered in favour of the plaintiffs for all the other items. With respect to the counter-claim: it has not been. supported by evidence and must fail. While- the
92 EXCHEQUER COURT REPORTS. VOL. XX. telegram of the 26th May from the defendants to HALEY ET AL Woodside concerning the arrival of the engine, begins' comoz ping "Expect engine, etc.," was an unfortunate one, R J e u a d s g o m ns e f n o t r yet an ordinarily prudent man would not treat such expectations of the arrival of an engine, especially in these days of delayed transportation, with much confidence; the engine, as a matter of fact, did not arrive in the plaintiff's yard until the 8th June, and after that time I am unable to find that there was any undue delay, bearing in mind the fact that under the verbal contract additional and collateral work was being continually ordered by the owner's agent, Wal-lace, even up to the 3rd July, two days before sailing. It is therefore impossible to hold that the owner really • suffered any loss or damage on this head. The whole result is that judgment should be entered • for the plaintiffs as above indicated, and the costs will follow the event. Judgment accordingly.
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.