T-1041-95
AN ACTION IN REM AGAINST THE SHIP "KRISTINA LOGOS" AND IN PERSONAM AGAINST ULYBEL ENTERPRISES LIMITED, JOSE PRATAS, and THE OWNERS, CHARTERERS AND OTHERS INTERESTED IN THE SHIP "KRISTINA LOGOS"
BETWEEN:
MARIO NEVES and CARLOS NEVES
Plaintiffs,
- and -
THE SHIP "KRISTINA LOGOS", ULYBEL ENTERPRISES
LIMITED, JOSE PRATAS, and THE OWNERS, CHARTERERS
AND OTHERS INTERESTED IN THE SHIP "KRISTINA LOGOS"
Defendants.
- and -
HER MAJESTY THE QUEEN
Intervenor
REASONS FOR ORDER
PINARD J.
This is an application on behalf of the defendants, Ulybel Enterprises Limited and Jose Pratas, to appeal the Order rendered on December 18, 1996, by Richard Morneau, Esq., Prothonotary of this Court. By the said Order, Her Majesty the Queen in Right of Canada, as represented by the Deputy Attorney General of Canada, was granted leave to intervene in the present action, pursuant to Rule 1010 of the Federal Court Rules, to have the fishing vessel "Kristina Logos" released from arrest issued in the present action as well as in Federal Court action T-799-94, for the purpose of being sold in accordance with a Commission for Sale issued pursuant to Rule 1007 of the Federal Court Rules. The plaintiffs supported the motion of Her Majesty the Queen for intervention in this action and for sale of the vessel pendente lite and similarly opposed the defendants' appeal from the Prothonotary's Order.
The appeal must be dismissed for the following reasons:
| 1. This Court has jurisdiction over Her Majesty the Queen's motion which was before the Prothonotary by reason of section 22 of the Federal Court Act, in particular by reason of paragraph 22(2)(a) (see ITO-Int Terminal Operators Ltd. v. ;Miida Electronics Inc.,, [1986] 1 S.C.R. 762). The Fisheries Act, R.S.C. 1985, c. F-14, does not prohibit a fishing vessel that is originally seized for violations of that Act from subsequently being arrested and sold under the jurisdiction given to this Court by section 22 of the Federal Court Act and pursuant to the special rules for admiralty proceedings included in division G of the Federal Court Rules. In fact, the vessel which was seized on April 2, 1994 pursuant to section 51 of the Fisheries Act, has been under arrest of this Court since April 5, 1994 in action T-799-94 and a further warrant of arrest was issued in the present action on May 23, 1995. |
| 2. Her Majesty the Queen has an interest in the vessel sufficient to warrant her intervention in the within action pursuant to Rule 1010 of the Federal Court Rules. That interest stems from Her Majesty the Queen's possession and custody of the ship which was seized on her behalf pursuant to the Fisheries Act, and from the significant costs which have been and which continue to be incurred by her as a result of that possession and custody. (see Tetley on Maritime Liens and Claims, 1985, p. 47: "If the ship is under arrest, liens do not normally arise but a claim for necessaries furnished after arrest may fall under expenses in custodia legis". Further, at p. 49: "... each case of necessaries depends on whether the goods or services are intended to benefit the vessel and the common venture. Finally, at p. 94: "Canadian courts have no difficulty in awarding expenses in custodia legis and court costs...") The evidence shows that the Department of Fisheries and Oceans has to date incurred costs and expenses for the care and preservation of the vessel amounting to over $500,000.00, and that the on-going cost of maintaining the vessel would be around $60,000.00 per year. I agree with the Prothonotary when he says that "without deciding their precise status, these expenses could be seen as having been engaged for the benefit of the ship and the common venture." Indeed, it will be incumbent upon Her Majesty the Queen to establish in due time the extent of her right and the priority status to be attributed to her claim, in accordance with any further order or directions of this Court. At this stage however, I, like the Prothonotary, am satisfied that Her Majesty the Queen has shown an interest in the vessel sufficient to warrant her intervention in this action. |
| 3. There is evidence that the vessel is deteriorating in value, since as of December 16, 1995, the vessel's market value was assessed at some CDN $550,000.00, down from CDN $750,000.00 as of April 4, 1994. Furthermore, as correctly stated by the Prothonotary, "it was established that the ship's classification certificate will expire on February 28, 1997. The failure to maintain the ship's classification will, as testified, significantly reduce the ship's value". Under such circumstances, I do not find it unreasonable that the Prothonotary ordered the vessel to be sold forthwith pursuant to Rule 1007, and more specifically pursuant to Rule 1007(3), of the Federal Court Rules. |
| 4. Given the fact that the Intervenor will have to establish her claim in accordance with further directions of this Court to be given pursuant to Rule 1008 of the Federal Court Rules, there was no need for the Prothonotary to prescribe any pleading to be filed and served pursuant to Rule 1010(2). |
| 5. It appears from the order under appeal that Her Majesty the Queen was granted leave to intervene in the present action for the sole purpose of obtaining an order for the sale of the fishing vessel in accordance with the commission for sale attached thereto. It must be assumed, therefore, that the Prothonotary did not intend to allow the Intervenor to otherwise take part in the action. Indeed, the Intervenor's rights to take part in the action may be defined otherwise by subsequent order made pursuant to Rule 1010(3). |
The appeal will therefore be dismissed with costs.
OTTAWA, Ontario
January 16, 1997
JUDGE
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.:
T-1041-95
STYLE OF CAUSE:
Mario Neves and Carlos Neves,
Plaintiffs,
and
The Ship "Kristina Logos", et al.,
Defendants,
and
Her Majesty The Queen,
Intervenor.
PLACE OF HEARING:
Montréal (Québec)
DATE OF HEARING:
January 14, 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED:
January 16, 1997
APPEARANCES
Ms. Danièle Dion
FOR THE INTERVENOR
HER MAJESTY THE QUEEN
Mr. Laurent Debrun
FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Stewart McKelvey Stirling Scales FOR THE PLAINTIFFS Barristers and Solicitors
Halifax, Nova Scotia
McCarthy Tétrault FOR THE DEFENDANTS Barristers and Solicitors
Montréal, Québec
Brisset Bishop FOR THE INTERVENOR Barristers and Solicitors
Montréal, Québec