Brooks Aviation Inc. v. Wrecked and Abandoned Boeing SB-17G Aircraft, Serial No. 44-83790 et al., 2004 FC 710

• Judge: MacKay, D.J.
• Court: Federal Court (Canada)
• Case Date: May 17, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FC 710;(2004), 253 F.T.R. 128 (FC)

Brooks Aviation v. Wrecked Boeing (2004), 253 F.T.R. 128 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. JN.007

Brooks Aviation, Inc. (plaintiff) v. The Wrecked and Abandoned Boeing SB-17G Aircraft, Serial No. 44-83790, Its Apparel and Cargo and the Owners, Charterers and All Others Interested in the Wrecked and Abandoned Boeing SB-17G Aircraft, Its Apparel and Cargo (defendants)

(T-217-02; 2004 FC 710)

Indexed As: Brooks Aviation Inc. v. Wrecked and Abandoned Boeing SB-17G Aircraft, Serial No. 44-83790 et al.

Federal Court

MacKay, D.J.

May 17, 2004.

Summary:

In 1947, an aircraft operated by the United States Air Force made a forced landing in Labrador and ultimately came to rest at the bottom of a lake. In 1998, the plaintiff company located the wrecked aircraft. The plaintiff commenced an action against the wrecked aircraft, its apparel and cargo (the res) and against the owner and all others interested in the res. The plaintiff moved for summary judgment seeking: (a) a declaration that the court had exclusive jurisdiction over the salvage of the aircraft; (b) a declaration that the plaintiff had a maritime lien for salvage services as against the res; (c) a declaration that the plaintiff had absolute possession and control of the aircraft for the purpose of the salvage effort and that all other parties were enjoined from interfering with the plaintiff's exclusive salvage rights; (d) a declaration that the plaintiff was entitled to a full and liberal salvage award from the Receiver of Wrecks, if title to the aircraft was unclaimed, or from any party determined to be the true owner of the res; and (e) a declaration that if no salvage award was paid, or if title to the aircraft was unclaimed by the true owner of the res, then the plaintiff would be the sole and unencumbered owner of the aircraft.

The Federal Court allowed the motion in part. The court declared that it had jurisdiction in accordance with s. 22 of the Federal Courts Act over the plaintiff's claim as salvor of the res. The court also declared that it had jurisdiction to protect the res and the plaintiff's priority rights as finder of the wrecked aircraft. However, the court was not prepared to grant declarations that the plaintiff had a maritime lien as salvor, that the plaintiff was entitled to entire and absolute possession or that others were enjoined from interfering with the plaintiff's salvage rights. That relief would be considered only after some salvage effort was successful in recovering all or part of the res. The court also declined to grant a declaration that the plaintiff was entitled to a full and liberal salvage award from the Receiver of Wrecks if title to the res was unclaimed by its owners.

Admiralty - Topic 8348

Practice - Actions in rem - Liens - Possessory liens - [See first Shipping and Navigation - Topic 6844 ].

Courts - Topic 4026

Federal Court of Canada - Jurisdiction - Trial Division - Maritime and admiralty matters - In 1947, an aircraft operated by the United States Air Force made a forced landing in Labrador and ultimately came to rest at the bottom of a lake - In 1998, the plaintiff company located the wrecked aircraft - The plaintiff commenced an action against the wrecked aircraft, its apparel and cargo (the res) and against the owner and all others interested in the res - On a motion for summary judgment, the plaintiff sought, inter alia, a declaration that the court had exclusive jurisdiction over the salvage of the aircraft - The Province of Newfoundland and Labrador argued that s. 449(1) of the Canada Shipping Act excluded the wrecked aircraft from the application of the law relating to salvage because the aircraft was not on or over the sea or tidal waters or on or over the Great Lakes - The Federal Court declared that it had jurisdiction in accordance with s. 22 of the Federal Courts Act over a claim for salvage of the res - Section 449(1) did not limit the traditional maritime salvage law as that had been extended to recovery of wrecked aircraft - Section 449(1) concerned the law of salvage, and the duty to render assistance in relation to vessels in distress, and extended that aspect of salvage law to aircraft on or over the sea or the Great Lakes - Those were not the circumstances in this case - See paragraphs 10 to 19.

Shipping and Navigation - Topic 6844

Salvage - Rights of salvor - Maritime lien - In 1947, an aircraft operated by the United States Air Force made a forced landing in Labrador and ultimately came to rest at the bottom of a lake - In 1998, the plaintiff company located the wrecked aircraft - The plaintiff commenced an action against the wrecked aircraft, its apparel and cargo (the res) and against the owner and all others interested in the res - The plaintiff moved for summary judgment seeking, inter alia, a declaration that it was a salvor with a maritime lien and that it had entire and absolute possession of the wrecked aircraft for purposes of its salvage effort - The Federal Court held that the plaintiff was not a salvor with a maritime lien, or a statutory lien under the Canada Shipping Act - There was no actual possession of the res at this stage, and constructive possession on which the plaintiff relied rested only on preliminary efforts to find, examine and document the res - However, the court held that the plaintiff's interests as first finder might be sufficient for a reasonable time to permit recovery of the res - The court declared that it had jurisdiction to protect the res and the plaintiff's priority rights as finder of the wrecked aircraft - See paragraphs 25 to 32.

Shipping and Navigation - Topic 6844

Salvage - Rights of salvor - Maritime lien - In 1947, an aircraft operated by the United States Air Force made a forced landing in Labrador and ultimately came to rest at the bottom of a lake - In 1998, the plaintiff company located the wrecked aircraft - The plaintiff commenced an action seeking, inter alia, a declaration that it had a maritime lien for salvage services against the wrecked aircraft, its apparel and cargo (the res) - The Federal Court stated that under traditional maritime law a valid salvage claim gave rise to a right in rem against the res that was saved and the res had to be in peril at the time the salvage efforts were made by a volunteer - In considering the plaintiff's claim, the court held, inter alia, that the res was in peril - The aircraft's continuing deterioration, at some unpredictable time in the future, would preclude possibilities of recovery and salvage of the res - While peril might not be imminent, it was inevitable - See paragraph 27.

Cases Noticed:

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 12].

Early Recovered Resources Inc. v. Gulf Log Salvage Co-operative Association et al. (2002), 216 F.T.R. 317; 2002 FCT 184, affd. [2003] 3 F.C. 447; 300 N.R. 130; 2003 FCA 35, refd to. [para. 13].

Smith v. Smith, [1979] 4 W.W.R. 665; 12 B.C.L.R. 195; 101 D.L.R(3d) 189 (S.C.), refd to. [para. 18].

Ontario v. Mar-Dive Corp. (1996), 20 O.T.C. 81; 141 D.L.R.(4th) 577 (Gen. Div.), refd to. [para. 24].

Ship Tubantia, Re (1924), 18 LI1. Rep. 158, refd to. [para. 30].

Morris v. Lyonesse Salvage Co., [1970] 2 LI1. Rep. 59, refd to. [para. 30].

Statutes Noticed:

Canada Shipping Act, R.S.C. 1985, c. S-9, sect. 449(1) [para. 17].

Counsel:

Cecily Strickland, for the plaintiff;

Rolf Pritchard, for the defendants.

Solicitors of Record:

Stewart McKelvey Stirling Scales, St. John's, Newfoundland, for the plaintiff;

Government of Newfoundland and Labrador, Department of Justice, St. John's, Newfoundland and Labrador, for the defendant.

This motion was heard before MacKay, D.J., of the Federal Court, who delivered the following decision on May 17, 2004.