Northwest Delta Yacht Services Inc. v. Sovereign Yachts (Canada) Inc. et al., (2004) 248 F.T.R. 69 (FC)

• Judge: Heneghan, J.
• Court: Federal Court (Canada)
• Case Date: October 24, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2004), 248 F.T.R. 69 (FC);2004 FC 304

Northwest Delta Yacht v. Sovereign Yachts (2004), 248 F.T.R. 69 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. MR.050

Northwest Delta Yacht Services Inc. (plaintiff) v. Sovereign Yachts (Canada) Inc., Mr. & Mrs. Stephen Striebel, the Owners and All Others Interested in the Motor Yacht Chairman, also known as Sovereign Hull Number 7644 (defendants)

(T-468-03; 2004 FC 304)

Indexed As: Northwest Delta Yacht Services Inc. v. Sovereign Yachts (Canada) Inc. et al.

Federal Court

Heneghan, J.

March 2, 2004.

Summary:

Mr. and Mrs. Striebel contracted with Sovereign Yachts (Canada) Inc. to construct a yacht for them. The vessel remained in Sovereign's ownership and the Striebels became mortgagees to secure their interest. Problems arose with the completion of the construction. The Striebels commenced an action in personam against Sovereign and in rem against the vessel (T-687-02). The Striebels went into possession and obtained the court's permission to move the vessel to another shipyard for completion. The plaintiff was an unpaid contractor who had supplied work and materials to the vessel at Sovereign's request. The plaintiff commenced an action in personam against Sovereign and the Striebels and in rem against the vessel. Mr. Striebel brought a motion for summary judgment, seeking an order to dismiss the plaintiff's action against all defendants except Sovereign and an order directing the payment out of the sum of $160,000, which had been paid into court in T-687-02.

The Federal Court granted the motion for summary judgment to dismiss the plaintiff's action against Mr. Striebel, but dismissed the motion for summary judgment to dismiss the action against Mrs. Striebel and the vessel. The motion for an order directing the payment out of $160,000 paid into court in T-687-02 was dismissed.

Editor's Note: For decisions rendered in T-687-02 see 219 F.T.R. 238, 222 F.T.R. 183, 222 F.T.R. 187, 225 F.T.R. 146 and [2002] F.T.R. Uned. 602.

Admiralty - Topic 24

Definitions - Owner defined - Striebel and his wife contracted with Sovereign to construct a yacht for them - The vessel remained in Sovereign's ownership and Striebel executed a ship's mortgage as mortgagee - Problems arose with the completion of the construction - The Striebels commenced an action in personam against Sovereign and in rem against the vessel - The Striebels went into possession and obtained the court's permission to move the vessel to another shipyard for completion - The plaintiff was an unpaid contractor who had supplied work and materials to the vessel at Sovereign's request - The plaintiff commenced an action in personam against Striebel - The Federal Court granted a motion for summary judgment to dismiss the action against Striebel - There was no contractual relationship between the plaintiff and Striebel - The court rejected the plaintiff's argument that Striebel was, at all material times, the beneficial owner of the vessel - See paragraphs 29 to 42.

Admiralty - Topic 8041

Practice - Actions in rem - General - The plaintiff was not paid for work and materials supplied to a yacht - The plaintiff commenced an action in personam against certain individuals and in rem against the vessel - The plaintiff claimed that it had the right to "sue" funds which had been deposited in another action to secure the release of the vessel from an arrest warrant - The plaintiff relied on Federal Court Rule 479(1)(d) - The Federal Court rejected the argument - Rule 479 dealt with the manner in which a statement of claim in rem was to be served and specifically identified the kinds of property upon which service was to be effected - Rule 479(1)(d) ("any proceeds paid into court in another proceeding") referred to the proceeds of a sale, not to money that was deposited to secure the release of property from arrest - See paragraphs 46 to 51.

Admiralty - Topic 8269

Practice - Actions in rem - Release of property on bail - Bail - Payment out - The plaintiff sought the payment out to him of funds which had been paid into court as bail in another proceeding to obtain the release of a yacht from arrest - The Federal Court denied the relief - The court stated that if a bail bond was security only in the action in which it was given then it saw no difference in principle when the bail was deposited in cash - No authority was cited to show that the court had jurisdiction to make such an order - The court stated that the motion for payment out, governed by Federal Court Rule 491, should be brought in the action in which the money was deposited - See paragraphs 54 to 55.

Courts - Topic 4074

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Summary judgment proceedings - Federal Court Rule 213(2) provided that "A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim" - The Federal Court stated that "The plain reading of this rule makes it clear that a defendant may seek the entry of summary of judgment after serving and filing a defence. The rule does not provide that a defendant who has served and filed a defence on his own behalf can move to strike an action on behalf of other defendants who have not defended an action" - See paragraphs 52 to 53.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Courts - Topic 4074 ].

Cases Noticed:

Mount Royal/Walsh Inc. v. Ship Jensen Star et al., [1990] 1 F.C. 199; 99 N.R. 42 (F.C.A.), refd to. [para. 20].

Louis Wolfe & Sons (Vancouver) Ltd. v. Ship Mesis and Transportes Intermar Armadora, [1977] 1 F.C. 429; 14 N.R. 168 (F.C.A.), refd to. [para. 21].

Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853; 111 F.T.R. 189 (T.D.), refd to. [para. 28].

Feoso Oil Ltd. v. Ship Sarla, [1995] 3 F.C. 68; 184 N.R. 307 (F.C.A.), refd to. [para. 35].

Scott Steel Ltd. v. Ship Alarissa et al., [1996] 2 F.C. 883; 111 F.T.R. 81 (T.D. Protho.), affd. (1997), 125 F.T.R. 284 (T.D.), refd to. [para. 41].

Freighters (Steamship Agents) Co. v. Ship Number Four, [1983] 1 F.C. 852; 48 N.R. 321 (C.A.), refd to. [para. 50].

Weser Isle v. Transocean Gateway Corp., [1974] 2 F.C. 90 (F.C.A.), refd to. [para. 55].

Statutes Noticed:

Federal Court Rules, 1998, rule 213(2) [para. 52]; rule 479(1)(d) [para. 46]; rule 491 [para. 55].

Counsel:

Wayne Ryan, for the plaintiff;

David F. McEwen, for the defendant, Stephen Striebel.

Solicitors of Record:

Piters & Co., for the plaintiff;

McEwen Schmitt, for the defendant, Stephen Striebel.

These motions were heard on October 24, 2003, at Vancouver, British Columbia, before Heneghan, J., of the Federal Court, who delivered the following decision on March 2, 2004.