T-1041-95
MONTREAL, QUEBEC, THIS 20th DAY OF FEBRUARY 1997
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
| 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
ORDER
This application by the intervenor for an order confirming the sale of the ship "KRISTINA LOGOS" is denied with costs, and the sale process undertaken by the Sheriff's Office of Newfoundland further to this Court's order of December 18, 1996 is quashed and set aside.
Richard Morneau
Prothonotary
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
RICHARD MORNEAU, ESQ.,
PROTHONOTARY:
This is an application by the intervenor, Her Majesty the Queen, for an order confirming the sale of the ship "KRISTINA LOGOS".
Background
By my order dated December 18, 1996, Her Majesty the Queen in Right 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 the 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 of Sale issued pursuant to Rule 1007 of the Federal Court Rules.
The said order was confirmed by the Trial Division of this Court and is now under appeal to the Appeal Division of this Court.
The Facts
As it appears from the Commission of Sale attached to the order of December 18, 1996, notices of sale inviting sealed offers to purchase were to be published twice in named newspapers and the advertisement had to include the vessel's particulars.
The High Sheriff of Newfoundland was assigned, by Her Majesty the Queen, responsibility for executing the Commission of Sale attached to the Order of Sale. The High Sheriff caused various advertisements to be published in the Saturday editions of the Toronto Globe and Mail, Lloyd's List, the New York Journal of Commerce and the St. John's Evening Telegram.
As it appears from the evidence submitted by the defendants, none of the advertisements caused to be published by the Sheriff's Office in execution of the Commission of Sale is accurate with respect of the tonnage and overall length of the "KRISTINA LOGOS".
The defendants' evidence indicates that the official Transcript of Registry of the "KRISTINA LOGOS" shows the overall length of the ship to be 41.7 m. and its gross tonnage, 734.52 tns. As I was not provided with another reference against which the true tonnage and length of the ship should be measured, I take the figures found in the official Transcript to be the accurate particulars of the "KRISTINA LOGOS".
The four advertisements referred to above show the ship to be longer than it is. The length is stated as 44.5 m. in three advertisements and 55.5 m. in the fourth one.
Of more significance, the gross tonnage of the ship is underestimated at 634.52 tns. in all advertisements.
Analysis
The "KRISTINA LOGOS" was described to the potential purchasers as a longer ship with less gross tonnage than reality. Based on common sense, one could very well argue that the length/gross tonnage ratio stated in the advertisements made the ship less attractive to potential buyers looking for a shorter fishing vessel with a bigger capacity.
I am of the view that it was incumbent upon the intervenor to satisfy the Court that in the case of the "KRISTINA LOGOS", that situation could not have resulted in attracting fewer bidders. There is no evidence on file on the part of the intervenor to put aside this probable conclusion. (Counsel for the intervenor sought to introduce into evidence an affidavit to that effect but as her attempt came only at the end of her rebuttal argument and since I was led to believe by both counsel for the defendants and counsel for the plaintiffs that the intervenor has known about the errors in the ship particulars for a while, I refused the introduction of that affidavit.)
Counsel for the intervenor suggested that any possible errors in the advertisement of the particulars of the ship were irrelevant since representatives of all bidders, as evidenced, went on board the ship at least once. Therefore, all bidders did not rely solely on the advertisements.
From my point of view, this argument misses the point as we do not know if a potential bidder abroad could have lost interest in the ship based on what he or she read in any advertisement.
Consequently, I am of the opinion that this application by the intervenor should be dismissed with costs and that the sale process undertaken by the Sheriff's Office of Newfoundland should be quashed and set aside.
Given the Reasons for Order rendered by the Honourable Mr. Justice Pinard on February 4, 1997 and that the ship's classification certificate will expire on February 28, 1997, a new sale process should be undertaken as soon as possible in accordance with the Commission of Sale attached to this Court order of December 18, 1996 or in accordance with a different order to be obtained upon application to this Court.
Considering that a new sale process will have to be undertaken, I do not have to rule on the other grounds of opposition to the sale raised by the defendants and the plaintiffs (at the hearing of the motion at bar, the latter appeared not to oppose in principle the sale of the ship but to oppose that the ship be sold at the sum relied on by the intervenor).
An order will be issued accordingly.
Richard Morneau
Prothonotary
Montreal, Quebec
February 20, 1997
T-1041-95
MARIO NEVES AND CARLOS NEVES
Plaintiffs
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
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-1041-95
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
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:February 17, 1997
REASONS FOR ORDER BY:Richard Morneau, Esq.,
Prothonotary
DATE OF REASONS FOR ORDER:February 20, 1997
APPEARANCES:
Mr. John D. Murphy for the Plaintiffs
Me Laurent Debrun for the Defendants Ulybel
Enterprises Limited & Jose Pratas
Me Danièle Dion for the Intervenor
SOLICITORS OF RECORD:
Mr. John D. Murphy/Mr. Richard Southcottfor the Plaintiffs
Stewart McKelvey Stirling Scales
Halifax, Nova Scotia
Me Laurent Debrun for the Defendants Ulybel McCarthy Tétreault Enterprises Limited & Jose Pratas
Montreal, Quebec
Me Danièle Dion for the Intervenor
Brisset Bishop
Montreal, Quebec