Norcan Electrical Systems Inc. v. Feeding Systems A/S et al., (2003) 235 F.T.R. 237 (TD)

• Court: Federal Court (Canada)
• Case Date: April 28, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 235 F.T.R. 237 (TD)

Norcan Electrical v. Feeding Systems (2003), 235 F.T.R. 237 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. JN.044

Admiralty Action in Rem Against the Ships "FB XIX" and "FB XX" and in Personam

Norcan Electrical Systems Inc., doing business as Feeding Systems Canada (plaintiff) v. Feeding Systems A/S, and the Owners and all others interested in the Ships "FB XIX" and "FB XX" (defendants)

Norcan Electrical Systems Inc., doing business as Feeding Systems Canada (plaintiff) v. Feeding Systems A/S, Feeding Systems Chile Ltd., and the Owners and All Others Interested in the Ships "FB XIX", "FB XX", "FB XXII", and "FB XXII" (defendants)

(T-1959-02; T-2091-02; 2003 FCT 702)

Indexed As: Norcan Electrical Systems Inc. v. Feeding Systems A/S et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

June 2, 2003.

Summary:

The Canadian plaintiff claimed to have supplied $74,929.75 in necessaries to the defendant vessels FB XIX and FB XX in Canada. Both vessels were arrested under court warrant. The second claim involved $212,357.35 in necessaries supplied by the plaintiff to the FB XXII and FB XXIII, which were said to be sister ships to the FB XIX and FB XX. A defendant applied to have bail set in the first action and to have the second action struck out or to have bail set.

A Prothonotary of the Federal Court of Canada, Trial Division, set bail in both actions at a total of $394,450. This amount was comprised of a principal amount based on the plaintiff's reasonably arguable best case, plus estimates of interest (calculated at 6% compounded semi-annually) and costs.

Admiralty - Topic 8121

Practice - Actions in rem - Warrants of arrest - General - A Prothonotary of the Federal Court of Canada, Trial Division, held that under s. 43(8) of the Federal Court Act there was no limit on the number of sister ships that could be arrested - See paragraph 14.

Admiralty - Topic 8268

Practice - Actions in rem - Release of property on bail - Bail bond - Quantum - An application was brought to set bail for two arrested ships - A Prothonotary of the Federal Court of Canada, Trial Division, held that the general rule was that a plaintiff was entitled to bail in an amount sufficient to cover his or her reasonably arguable best case, together with interest and costs, limited by the value of the wrongdoing vessel - The cap on bail was the value of the ship - This cap applied even though the claim, costs and interest might exceed the value of the arrested ship - See paragraph 10.

Admiralty - Topic 8268

Practice - Actions in rem - Release of property on bail - Bail bond - Quantum - The Canadian plaintiff claimed to have supplied $74,929.75 in necessaries to the defendant vessels FB XIX and FB XX in Canada - Both vessels were arrested under court warrant - The second claim involved $212,357.35 in necessaries supplied by the plaintiff to the FB XXII and FB XXIII, which were said to be sister ships to the FB XIX and FB XX - A defendant applied to have bail set - The defendant's principal swore an affidavit that suggested that there would be a counterclaim "close to $2,000,000.00 CDN" - A Prothonotary of the Federal Court of Canada, Trial Division, held that this was not an extraordinary circumstance by which it should discount the plaintiff's claim on the bail hearing - See paragraph 29.

Admiralty - Topic 8268

Practice - Actions in rem - Release of property on bail - Bail bond - Quantum - The Canadian plaintiff claimed to have supplied $74,929.75 in necessaries to the defendant vessels FB XIX and FB XX in Canada - Both vessels were arrested under court warrant - The second claim involved $212,357.35 in necessaries supplied by the plaintiff to the FB XXII and FB XXIII, which were said to be sister ships to the FB XIX and FB XX - A Prothonotary of the Federal Court of Canada, Trial Division, set bail in both actions at a total of $394,450 - This amount was comprised of a principal amount based on the plaintiff's reasonably arguable best case, plus estimates of interest (calculated at 6% compounded semi-annually) and costs - See paragraphs 30 to 33.

Admiralty - Topic 8347.1

Practice - Actions in rem - Liens - Maritime lien - Enforcement - Sister ship procedure - [See Admiralty - Topic 8121 ].

Admiralty - Topic 8347.1

Practice - Actions in rem - Liens - Maritime lien - Enforcement - Sister ship procedure - A defendant applied to have bail set for two arrested ships - A Prothonotary of the Federal Court of Canada, Trial Division, found that the French and English versions of the sister ship provision in s. 43(8) of the Federal Court Act did not share a meaning other than to allow some form of sister ship arrest - The court found that the French version allowed an arresting party to invoke the concept of beneficial ownership in a meaningful way and that the French version better reflected the purpose and intent of sister ship legislation - The court applied the French version for the purposes of the bail hearing - See paragraphs 12 to 26.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See second Admiralty - Topic 8347.1 ].

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See second Admiralty - Topic 8347.1 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict) - [See second Admiralty - Topic 8347.1 ].

Cases Noticed:

Hollandsche Aannaming Maatschappij B.V. v. Ship Ryan Leet et al. (1998), 135 F.T.R. 67 (T.D.), refd to. [para. 3].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 9].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 9].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 9].

Vulcan Equipment Co. v. Coats Co., [1982] 2 F.C. 77; 39 N.R. 518 (F.C.A.), leave to appeal refused (1981), 63 C.P.R.(2d) 261 (S.C.C.), refd to. [para. 9].

Brotchie v. Ship Karey T (1994), 77 F.T.R. 71 (T.D. Protho.), refd to. [para. 10].

Ship Moschanthy, Re, [1971] 1 Lloyd's Rep. 37 (Q.B.), refd to. [para. 10].

Ship Staffordshire, Re (1872), 1 Asp. M.L.C. 365 at 372 (P.C.), refd to. [para. 10].

Ship Charlotte, Re, [1920] P. 78, refd to. [para. 10].

Argosy Seafoods Ltd. v. Ship Atlantic Bounty et al. (1991), 45 F.T.R. 114 (T.D.), refd to. [para. 11].

Ship Gulf Venture, Re, [1984] 2 Lloyd's Rep. 445, refd to. [para. 11].

Atlantic Shipping (London) Ltd. v. Ship Captain Forever et al. (1995), 97 F.T.R. 32 (T.D. Protho.), refd to. [para. 11].

Ship Manitou III, Re, [1988] F.C.J. No. 1124 (T.D.), refd to. [para. 11].

Ship Tribels, Re, [1985] 1 Lloyd's Rep. 129, refd to. [para. 11].

Ship Lloyd Pacifico, Re, [1995] 1 Lloyd's Rep. 54, refd to. [para. 13].

Flota Cubana de Pesca (Cuban Fishing Fleet) et al. v. Canada (Minister of Citizenship and Immigration (1997), 221 N.R. 356 (F.C.A.), refd to. [para. 18].

Beothuk Data Systems Ltd., Seawatch Division v. Dean et al., [1998] 1 F.C. 433; 218 N.R. 321 (F.C.A.), refd to. [para. 47].

Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2; 46 N.R. 185, refd to. [para. 18].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658, refd to. [para. 19].

Price, Re (1973), 8 N.B.R.(2d) 620 (Q.B.), refd to. [para. 21].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, sect. 43(8) [para. 14].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 171 [para. 20].

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 234 [para. 19].

Marsden on The Law of Collisions at Sea, British Shipping Laws (1961), vol. 4, p. 146 [para. 27].

McGuffie on Admiralty Practice, British Shipping Laws (1964), vol. 1, p. 140 [para. 10].

Tetley on Maritime Liens and Claims (2nd Ed. 1998), pp. 1025 [para. 13]; 1031 [para. 12]; 1035 [para. 13]; 1039 [para. 13].

Counsel:

Douglas G. Schmitt, for the plaintiff;

Carey C. Veinotte, for the defendants.

Solicitors of Record:

McEwen, Schmitt & Co., Vancouver, British Columbia, for the plaintiff;

Taylor, Veinotte, Sullivan, Vancouver, British Columbia, for the defendants.

This application was heard at Vancouver, British Columbia, on April 28, 2003, by Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following decision on June 2, 2003.