Date: 19980126
Docket: T-2587-97
BETWEEN:
458093 B.C. LTD.
Plaintiff
- and -
ROGER HILLS and the owners and
all others interested in the ship "ZOMBY WOOF"
and the ship "ZOMBY WOOF"
Defendant
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Plaintiff applies, ex parte, for an order for substitutional service on the Defendant, Roger Hills, not an unusual application and one easily obtained on the material filed. However, the Plaintiff goes further and seeks an order for substitutional service of both the Statement of Claim and of the warrant for arrest on the Defendant vessel, for the Zomby Woof is apparently in the possession of a large and powerful animal, having short coarse hair, a broad head and pendant ears, namely a Rottweiler.
CONSIDERATION
[2] The traditional view is that substitutional service is inappropriate in the case of in rem proceedings. There are two main reasons for this conventional wisdom. First, unless the ship is within the jurisdiction and can be served with the writ, the statement of claim or the warrant, as the case may be, the property cannot be arrested and thus the in rem process would be frustrated. Second, and I have in mind here both the former Exchequer Court Rule 67 and English Order 65/4, such substitutional service provisions apply only to documents which must be served personally and does not apply to in rem material. This analysis is set out in The Good Herald, [1987] 1 Lloyd's 236 (Q.B.) at page 238. This traditional view is further explained in The Banco, [1971] 1 Lloyd's 49 at 53, a decision of the Court of Appeal, although in a different context, that of sister ship arrest and choice of a vessel to arrest. Lord Denning explains the invocation of the in rem jurisdiction:
| "When a plaintiff brings an action in rem, the jurisdiction is invoked, not when the writ is issued, but when it is served on the ship and the warrant of arrest is executed. The reason is because it is an action in rem against the very thing itself: this does not take effect until the thing is arrested." |
However, this English case law does not apply in the context of the present Federal Court Rules which, among other things, contain a phrase deeming an arrest to take place.
[3] The present Federal Court Rules allow more latitude than predecessor rules and, as I say, deem an arrest to take place when certain conditions are met. Rule 1003(6), which governs the service of the warrant of arrest is as follows:
| "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." [emphasis added] |
[4] The manner of service of a statement of claim in rem is dealt with in Rule 1002. The relevant portion is contained in the first part of subsection 5 of Rule 1002:
| "(5) In an action "in rem", the statement of claim or declaration shall be served |
| (a) upon a ship, or upon cargo, freight or other property, if the cargo or other property is on board a ship, by attaching a certified copy of the statement of claim or declaration to the main mast or the single mast, or some other conspicuous part of the ship, and leave the same attached thereto; ..." [emphasis added] |
In an instance in which the Court's marshall or sheriff cannot obtain access to the ship, Rule 1002(6) comes into play:
| "If access cannot be obtained to the property upon which a statement of claim or declaration is to be served under paragraph (5), instead of serving it in the manner provided by paragraph (5), it may be served personally on the person who appears to be in charge of the property." |
This Rule allows in rem proceedings to be invoked, without serving the ship, merely by serving the person in charge. But here the person in charge of the Zomby Woof is hiding behind an intimidating and quite possibly dangerous dog. This brings to mind the possibility of substitutional service.
[5] Our Rule for substitutional service is very different from the corresponding English Order and the former Exchequer Court Rule which are limited to substitutional service of in personam documents. Federal Court Rule 310(1) is quite broad for it provides that:
| "If it be made to appear to the Court that from any cause prompt service of a document cannot be effected, the Court may make such order for substitutional or other service as may seem just." |
This Rule does not exclude substitutional service of in rem material. However, I would limit its use as a vehicle by which to serve in rem material to instances where the special circumstances of the case so require. I limit the use of substitutional service of in rem material to special circumstances because the posting of the res with, for example, an arrest warrant, serves several practical ends. First, it gives the owner, either directly or through the master, notice of the action and of the arrest. Second, in the case of a sea-going ship, it assists a necessaries supplier, who attends aboard in many instances and who looks to the credit of the vessel, in deciding whether or not the ship should have credit. Third, it provides a warning for those dealing with an interest in the ship, for example, a purchaser or an intended mortgagee. In the present instance, substitutional services will give notice to the owner, Mr. Hills. A person dealing with an interest in a local vessel would be directly warned of the arrest when making the usual search in the Court Registry for in rem proceedings. A supplier of necessaries to the Zomby Woof might not know of the arrest. However, while one may not completely discount the possibilty, the chance of a necessaries suppier attending aboard the Zomby Woof, in Mr. Hills backyard, with an intent to test and to rely on the credit of a small fishing vessel, is minimal. On balance, substitutional service would give notice appropriate in the present circumstances.
[6] The Zomby Woof is a small fishing vessel, 35 feet in overall length. From the material, it would seem that the vessel, as is the case with many modern small fishing vessels, engaged in salmon gill-netting and in herring gill-netting, are moved about on a trailer. Mr. Michael Rekis, a director of the Plaintiff, deposes that he is personally aware that the Zomby Woof is located (well inland) at the premises of the Defendant Roger Hills at 5597 Lost Lake Rd., Nanaimo, B.C.
[7] Mr. Gordon Neilson, in an affidavit, sets out that he attempted to serve Roger Hills, but that the male resident at 5597 Lost Lake Rd. threatened, in no uncertain terms, to unleash his Rottweiler, which was behaving in an extremely aggressive manner. Mr. Neilson, because he was certain that the threat of the Rottweiler attacking was a serious one, gave up on any attempt to serve, leaving the Rottweiler in possession of the field.
[8] The Sheriff, in the person of a civil court bailiff, would face similar difficulty in serving material on the Zomby Woof. Given the very real danger to the Sheriff and allowing that the warrant is to be served in the same manner as an in rem statement of claim, that an in rem statement of claim may be served, not on a ship, but personally on whoever appears to be in charge of the ship and that Rule 310(1) allows substitutional service of any document, this is a reasonable instance in which to consider substitutional service.
CONCLUSION
[9] As I have indicated, I am well aware of the traditional reasons why substitutional service of an arrest warrant is not allowed, first, that a ship must be within the jurisdiction and second, that the substitutional service provisions of the rules of courts are often limited to personal service. In the present instance, the ship is not outside of the jurisdiction of the Court, but merely beyond the safe reach of the Court's Sheriff. This is an appropriate instance in which to allow substitutional service of not only the in personam Plaintiff, but also of the vessel with both the Statement of Claim and the warrant.
[10] The Court's Sheriff may serve Roger Hills with the Statement of Claim and affidavit to lead warrant and serve and arrest the Zomby Woof by leaving certified copies of the Statement of Claim, the affidavit to lead warrant and the order arising out of this motion, together with the warrant, in the mailbox of Roger Hills at 5597 Lost Lake Rd., Nanaimo, B.C., thereupon, to paraphrase Rule 1003(6) "... the Zomby Woof shall be deemed to be arrested.". In this way there will be appropriate notice to Roger Hills and moreover the Sheriff will stand a sporting chance of staying beyond of the reach of the jaws of Mr. Hills' Rottweiler.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
January 26, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: January 26, 1998
COURT NO.: T-2587-97
STYLE OF CAUSE: 458093 B.C. Ltd.
v.
| Roger Hills and the owners and all others interested in the ship "ZOMBY WOOF" and the ship "ZOMBY WOOF" |
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated January 26, 1998
APPEARANCES:
Mr. Robert Doran for Plaintiff
SOLICITORS OF RECORD:
Mr. Robert Doran
Barrister & Solicitor
Vancouver, BC for Plaintiff