232 EXCHEQUER COURT REPORTS. VOL. XX. • 1 V 920 QUEBEC ADMIRALTY DISTRICT. Dec. 6. --- LA CIE DES BOIS DU NORD .... PLAINTIFF; vs. S.S. ST. LOUIS. DEFENDANT. Shipping—Jurisdiction—Building and Equipping--Maritime Lien— Admiralty Court Act, 1861. Plaintiff claimed $1,562.99 for work done and materials furnished for the S.S. Si. Louis while at Amos, P.Q. The vessel was arrested, and J. F. H., of Amos, aforesaid, who had an interest therein under an agreement to purchase, filed an appearance under reserve. The vessel was registered at the Port of Montreal, and at the date of institution of the action the registered owner was J. F. S., of Smiths Falls, Ont. The vessel was not under arrest of the court 'at the time of the institution of the cause. Held: On the facts, that the court had no jurisdiction to entertain the claim made herein (1). 2. A claim for the supply of necessaries to a ship does not constitute a maritime lien thereon. (The Two Ellens, 4 P.C. 161 (at p. 166) referred to. AN ACTION in rem claiming $1,562.99 for work ' done and necessary disbursements made for the vessel St. Louis. An appearance was filed and certain proceedings had in the case. December 2nd, 19 20. Defendant moved before the Honourable Mr. Justice Maclennan, D.L.J.A., at Quebec, to have the action dismissed for want of jurisdiction. (1) Reporter's Note.—See sections 4 and 5 of the Admiralty Court Act, 1861, and The Barge Leopold, 18 Ex. C.R., 325; and Haley v. Como; 20 Ex. C.R. 86..
r VOL. XX. EXCHEQUER COURT REPORTS. 233. J. A. Gagne, K. C. for plaintiff. 1920 LA CIE DES 4.C. B°IS Dz'NORD M. Thomson and , Lucien Maraud,. for defendant. S. S. ST. Louis The facts and questions ,of law raised are stated in Reasons for Judgment. the .reasons for judgment. MACLENNAN, D. L. J. A. this (December, 6, 1920) delivered judgment. • • This is an action in rem and by the endorsement ; on the .writ of summons the plaintiff claims the sum of $1,562.99 for work done and necessary disbursements made for the vessel St. Louis at AmOs, province of Quebec, during the period within April and. August, , 1920, inclusively, and for costs. On a warrant issued from the Court the vessel was arrested in due course. The writ is addressed to the owners and others interested in the vessel St. Louis. An appearance was filed on behalf of Julius Francis House, lumber merchant 'and agent residing in Amos, province of Quebec, owner of the vessel St. Louis and undër reserve. Both parties have taken some incidental proceedings in the action. The defendant now moves the .Court to :order that the writ of summons, the warrant and the arrest be set aside and be annulled, the vessel released from seizure and the action dismissed with Q costs, for want of jurisdiction, on the ground that the registered owner' or owners were domiciled in Canada before, at the time and since' the work claimed to have been done and materials claimed to have been furnished were so done and furnished and, in any event, that the warrant and the arrest should be set aside on the ground that the allegations of the affidavit for the warrant are insufficient and irregular; the whole with costs.
234 EXCHEQUER COURT REPORTS. VOL. XX. 1920 It was admitted by the parties that at the time of LA CIE DOERS N the institution of the action the vessel was not under BOIS by ORD S.S. S Louis arrest of the Court, and it would not therefore have T: jurisdiction over a Reasons for claim for building, equipping or Judgment• repairing under section 4 of the Admiralty Court Act, 1861. Section 5 of that Act gives jurisdiction to the Court over any claim for necessaries supplied to any ship elsewhere than in the port where the ship belongs, unless it is shown to thë satisfaction of the Court that at the time of the institution of the cause any owner or part owner is domiciled in Canada. This vessel was registered at the Port of Montreal, on July 3rd, 1902, and at the , date when the cause of action arose and the case was instituted the vessel was registered in the name of John F. Sherman, of Smiths Falls, province of Ontario, and since April, 1919, House has' had an interest in the vessel under agreement to purchase her. It is settled law that a claim for the supply of necessaries does not give a maritime lien on . a ship (Johnson and others v. Black), The Two Ellens (1), The registered owner Sherman being domiciled in Canada at the time of the institution of the action, and House, who claims to be interested in the vessel under agreement to purchase, being also domiciled in Canada since many years, it is manifest that the Court is without jurisdiction over the ,claim upon which the action is based and that the action must 4 therefore be dismissed. The defendant, as a second ground for the setting aside of the warrant and arrest, alleges that the affidavit to lead warrant is insufficient and irregular inasmuch as it does not state, as is required by Rule of (1) L.R., 4 P.C., 161, at page 166.
VOL. XX. EXCHEQUER COURT REPORTS. Practice and Procedure, 37, the national Character of the ship and to the best of respondent's belief no L owner or part owner of the ship was domiciled in s.s. s Canada at the time of the institution of the action. The plaintiff submits that the objection raised by defendant to the sufficiency of the affidavit is a mere technical objection which 'has been waived by the appearance and other proceedings in the. action. It is unnecessary for me to decide the question raised as to the sufficiency of the affidavit, as I have come to the conclusion that under the statute there is absolute absence of jurisdiction, barge Leopold (1). The defendant could have raised the question of jurisdiction immediately after appearance; this would have saved4 some expense for both. parties. There will therefore be judgment setting aside the writ, warrant and arrest, and dismissing the action with costs up to and including the appearance and defendant's motion to dismiss for want of jurisdiction, and as to all other proceedings in the action, each party will pay his own costs. (1) 18 Ex. CR. 325. 13137-8 235 lv B A c I ~ D n~ T: Loris Reasons for Judgment. Stack et al. vs. the 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.