Federal Court Decisions

Date: 20020415

Docket: T-1441-01

Neutral citation: 2002 FCT 432

BETWEEN:

                                                           ISLAND TUG & BARGE LTD.

                                                                                                                                                          Plaintiff

                                                                             - and -

                                                                HAEDONG CO. LTD.,

                                                                DAITO LINE CO. LTD.,

                                                  and THE OWNERS AND ALL OTHERS

                                          INTERESTED IN THE SHIP "99 HAEDONG STAR",

                                      also described as the "HAEDONG STAR NO. 99"

                                                                                                                                                  Defendants

                                                               REASONS FOR ORDER

NADON J.

[1]                 On March 12, 2002, I made an Order, at the request of the plaintiff, requiring the defendants Haedong Co. Ltd. and Daito Line Co. Ltd., and Captain Ye Chun Gil, to appear before this Court in Montreal on Wednesday, April 3, 2002, to show cause why they should not be held in contempt for failing to comply with an Order made on August 15, 2001, by Prothonotary John Hargrave.

[2]                 Specifically, the plaintiff is alleging that the said defendants and Captain Ye Chun Gil refused to comply with paragraphs 2, 3 and 5(d), (k) and (n) of Prothonotary Hargrave's Order, which read as follows:

2.             The Plaintiff shall have leave to inspect the 99 Haedong Star (otherwise known as the Haedong Star No. 99, hereinafter referred to as the 99 Haedong Star), including the testing of the winch on that tug, which inspection and testing shall be conducted or supervised by a marine surveyor, Venu Kochath, and his assistant at Montreal, Quebec, or any other location in Canada at which the tug may be arrested;

3.             The Defendant shall permit Mr. Kochath, his assistant, and personnel required to test the winch to attend aboard the 99 Haedong Star, and to have unrestricted access to that vessel;

5.             The Defendant shall deliver to Mr. Kochath the original ship papers of the 99 Haedong Star as follows:

[...]

d)             Maintenance Records for 1 year prior to May 10, 2001 including the winches, towlines, and towing pins;

[...]

k)             Any record of day to day operations (in addition to log books) covering the period of April 29, 2001 to May 10, 2001;

[...]

n)             All correspondence from the tug to owners and operators from April 29, 2000 to May 10, 2000;

[3]                 The aforesaid defendants and Captain Ye Chun Gil did not appear in Montreal on April 3, 2002, at which time the plaintiff called two witnesses, namely Jean-Marie Fontaine and Venu Kocharth.

[4]                 Jean-Marie Fontaine, a Montreal lawyer who had been retained by the plaintiff's solicitors to coordinate the tracking and the arrest of the vessel "99 HAEDONG STAR" in Montreal was called first. Mr. Fontaine explained that he had also been requested by the plaintiff's solicitors to attend on board the vessel and to collect the documents which the prothonotary had ordered the defendants, as per paragraph 5 of his Order, to deliver to Mr. Kochath, the surveyor appointed by the plaintiff to conduct the inspection of the vessel, as per paragraph 2 of the Prothonotary's Order.

[5]                 Mr. Fontaine attended on board the vessel "99 HAEDONG STAR" at Montreal on August 24 and 25, 2001. Mr. Fontaine was there when the bailiff, André Laudriault, boarded the vessel to serve the statement of claim, the warrant of arrest and Prothonotary Hargrave's Order of August 15, 2001.

[6]                 Mr. Fontaine made it clear during his testimony that the plaintiff never received from the defendants the originals of the documents listed in paragraphs 5 (d), (k) and (n) of Prothonotary Hargrave's Order. He testified that he explained the meaning of every paragraph of Prothonotary Hargrave's Order to Captain Ye Chun Gil and also to Mr. Richard Mannion, a surveyor retained by the solicitors acting on behalf of the owners of the "99 HAEDONG STAR".

[7]                 Mr. Fontaine further testified that he protested and reasserted that the plaintiff was entitled to all of the original documents listed in paragraph 5 of Prothonotary Hargrave's Order. However, as I have already indicated, three of the original documents were never received by the plaintiff.

[8]                 The second witness called by the plaintiff was Mr. Venu Kochath, a marine surveyor. Mr. Kochath was appointed by the plaintiff's solicitors to inspect the "99 HAEDONG STAR" and more particularly, to inspect the winch thereof. Mr. Kochath went to Russia in May 2001 and attempted to inspect the "99 HAEDONG STAR" at the shipyard where it was laid up. He there met Captain Ye Chun Gil, for the first time, who did not allow him to inspect the "99 HAEDONG STAR".

[9]                 On August 24, 2001, at Montreal, he again met Captain Ye Chun Gil. Mr. Kochath testified that the vessel arrived in Montreal around 2:30PM, where he and one of his colleagues, a representative of Mount Royal Walsh and Mr. Fontaine were waiting for her. They all went aboard the "99 HAEDONG STAR" and explained the Prothonotary's Order of August 15, 2001, to the captain.

[10]            According to Mr. Kochath, the captain indicated to them that he required instructions from his owners, "whatever the Court Order said". Mr. Kochath made it clear that he was never allowed to inspect the "99 HAEDONG STAR" as per paragraph 2 of Prothonotary Hargrave's Order. He also made it clear that he was never allowed to perform a proper test of the winch, as per paragraph 3 of Prothonotary Hargrave's Order.

[11]            Finally, it was also very clear from Mr. Kochath's testimony that he did not have "unrestricted access to the vessel", as per paragraph 3 of Prothonotary Hargrave's Order.

[12]            The plaintiff has, to my satisfaction, demonstrated beyond a reasonable doubt that the defendants Haedong Co. Ltd. and Daito Line Co. Ltd., respectively owner of the tug "99 HAEDONG STAR" and disponent owner and operator of the tug, have refused, without justification, to comply with paragraphs 2, 3 and 5 (d), (k) and (n) of Prothonotary Hargrave's Order of August 15, 2001. I also come to the same conclusion in regard to Captain Ye Chun Gil.

[13]            Mr. Sproule, counsel for the plaintiff, argued that a reasonable fine for the corporate defendants was $25,000. With respect to Captain Ye Chun Gil, he suggested a fine of $10,000. After consideration, I have come to the conclusion that a fine of $25,000 for each of the corporate defendants and a fine of $5,000 for Captain Ye Chun Gil, are appropriate fines in the circumstances. The fines shall be paid within sixty (60) days of service of this Order upon the defendants and upon Captain Ye Chun Gil.

[14]            Finally, with respect to costs, the corporate defendants and Captain Ye Chun Gil shall pay costs to the plaintiff, in regard to the contempt proceedings, on a solicitor-client basis.

                                                                                                       JUDGE

O T T A W A, Ontario

April 15, 2002.