Greeley v. Ship Tami Joan, (1997) 135 F.T.R. 290 (TD)

• Judge: Gibson, J.
• Court: Federal Court (Canada)
• Case Date: August 29, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 135 F.T.R. 290 (TD)

Greeley v. Ship Tami Joan (1997), 135 F.T.R. 290 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. SE.032

David Greeley (plaintiff) v. The Owners and all others interested in the Ship "Tami Joan" (defendants)

(T-2778-92)

Indexed As: Greeley v. Ship Tami Joan

Federal Court of Canada

Trial Division

Gibson, J.

August 29, 1997.

Summary:

The plaintiff entered an agreement to lease a vessel (the Tami Joan) from Lord from May 15, 1992, to December 25, 1992. The defendant Province of New Brunswick held a mortgage on the Tami Joan. The mortgage was in arrears. In late October, 1992, the Province of New Brunswick seized the vessel. The plaintiff brought an action for: (a) an order that the plaintiff be entitled to possession and use of the Tami Joan; (b) an order that the plaintiff was entitled to a possessory maritime lien and a right in rem by virtue of the equipment, supplies and improvements provided to the ship by the plaintiff; (c) an order that such possessory maritime lien ranked in priority to all other claims in relation to the ship; and (d) damages respecting loss of use of the ship from October 26, 1992, to December 25, 1992.

The Federal Court of Canada, Trial Division, dismissed the action.

Admiralty - Topic 8044

Practice - Actions in rem - General - When available - The plaintiff leased a vessel from Lord - The Province of New Brunswick held a mortgage on the vessel - The mortgage was in arrears - The Province seized the vessel - The Federal Court of Canada, Trial Division, held that the seizure was lawful and that the plaintiff had not been entitled to possession or use of the vessel since it was seized - The court concluded that the plaintiff was not entitled to a possessory maritime lien or to a right in rem arising from a possessory maritime lien by virtue of the equipment, supplies and improvements which he provided to the vessel - While the plaintiff might have a statutory right in rem for necessaries and repairs, any such right ranked below that of the Province as a mortgagee in possession - See paragraphs 37 to 43.

Admiralty - Topic 8045

Practice - Actions in rem - General - Claims for necessaries - [See Admiralty - Topic 8044 ].

Admiralty - Topic 8342

Practice - Action in rem - Liens - Priorities - [See Admiralty - Topic 8044 ].

Admiralty - Topic 8345

Practice - Action in rem - Liens - Maritime lien for necessities - [See Admiralty - Topic 8044 ].

Admiralty - Topic 8348

Practice - Action in rem - Liens - Possessory liens - [See Admiralty - Topic 8044 ].

Damages - Topic 224

When available - Requirement of proof of basis of claim - The plaintiff leased a vessel from Lord from May 15, 1992, to December 25, 1992 - The defendant Province of New Brunswick held a mortgage on the vessel - The mortgage was in arrears - In late October, 1992, the Province of New Brunswick seized the vessel - The plaintiff brought an action seeking various relief, including damages respecting loss of use of the ship from October 26, 1992, to December 25, 1992 - The Federal Court of Canada, Trial Division, dismissed the action - The court further held that the claim for damages would have failed on its own merits - There was no way for the court to conclude that the plaintiff lost an opportunity to engage in the late season turbot fishery as alleged, and even if the court were to so conclude, there was no evidence tendered by which it could have calculated damages - See paragraphs 45 to 48.

Practice - Topic 5285.1

Trials - General - Opening and closing addresses - General - The plaintiff leased a vessel from Lord - The defendant Province of New Brunswick held a mortgage on the vessel - The mortgage was in arrears - The Province seized the vessel - The plaintiff brought an action seeking various relief - In closing argument, the plaintiff argued that the Province failed to prove its mortgage on the vessel and the registration thereof - The Federal Court of Canada, Trial Division, stated that considering the plaintiff's failure to object to the introduction of a copy of the mortgage at trial and the plaintiff's failure in its reply to the statement of defence to deny allegations regarding the mortgage and its registration, the court was not prepared to entertain the plaintiff's position regarding proof of the mortgage and registration, taken for the first time in closing argument - See paragraphs 29 and 30.

Shipping and Navigation - Topic 523

Ships - Ownership and control - Rights, duties and liabilities of mortgagees - Exercise of rights during charterparty - The plaintiff leased a vessel from Lord - The Province of New Brunswick held a mortgage on the vessel - The mortgage was in arrears - The Province seized the vessel - The Federal Court of Canada, Trial Division, held that the seizure was lawful - The mortgage was in arrears, insurance on the vessel had been allowed to lapse contrary to the repayment agreement between Lord and the Province, and two other paragraphs of the repayment agreement were breached - Further, Lord was unable or unwilling to perform the charterparty contract which required that Lord and the plaintiff share the cost of insurance on the vessel and the Province's security was impaired by allowing the insurance to lapse - See paragraphs 31 to 36.

Cases Noticed:

Ship Myrto, Re, [1977] 2 Lloyd's Rep. 243, appld. [para. 32, footnote 1].

Banco do Brasil S.A. v. Ship Alexandros G. Tsavliris et al., [1990] 3 F.C. 260; 35 F.T.R. 122 (T.D.), appld. [para. 33, footnote 2].

Banco do Brasil S.A. v. Ship Alexandros G. Tsavliris et al., [1992] 3 F.C. 735; 145 N.R. 140 (F.C.A.), appld. [para. 33, footnote 3].

Hamilton v. Harland & Wolff; Ship Acacia (1880), 4 Asp. M.L.C. 254 (Ire.), refd to. [para. 38, footnote 5].

Benson Brothers Shipbuilding Co. (1960) Ltd. v. Ship Miss Donna, [1978] 1 F.C. 379 (T.D.), refd to. [para. 43, footnote 8].

Authors and Works Noticed:

Buchan, J.D., Mortgages of Ships, Maritime Security in Canada (1986), p. 95, note 4 [para. 38, footnote 6].

Tetley, William, Maritime Liens and Claims (1985), p. 274 [para. 42, footnote 7].

Counsel:

John R. Sinnott, for the plaintiff;

C. Clyde Spinney, for the defendant, Her Majesty The Queen, in right of New Brunswick.

Solicitors of Record:

Lewis, Sinnott & Shortall, St. John's, Newfoundland, for the plaintiff;

New Brunswick Attorney General's Office, Fredericton, New Brunswick, for the defendant, Her Majesty the Queen in right of New Brunswick;

Nicholson, Turner, Walker & White, St. Stephen, New Brunswick, for the defendant, The Owners and all others interested in the Ship Tami Joan.

This action was heard in St. John's, Newfoundland, on May 26 to 29, 1997, before Gibson, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on August 29, 1997.