Date: 19990608
Docket: T-38-99
BETWEEN:
THE ROYAL BANK OF SCOTLAND plc.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "KIMISIS III" AND
MADONNA NAVIGATION (MALTA) LIMITED,
Defendants.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] "Prior to" is a quasi-adverb. It is to be avoided, unless one uses it in a formal manner meaning "as a necessary preliminary to". To use "prior to" in the sense of "before" is unjustified, may be an attempt at grandeur and indeed, can be dangerous, as in the present instance.
[2] The present circumstances and these reasons arise out of late filing of several affidavits of claim by which lien claimants look to the sale proceeds of the Kimisis III. The affidavits were filed one day late as a result of a matter overlooked by the Court, indeed, by reason of an error on the part of the Court, in that the Order did not accord with what was agreed to at the time of the hearing of motions for sale orders involving the Kimisis III and three sister ships. As a result, counsel acting for several lien claimants, specifically Triaena Travel and Tourism, Crescent Ship Services Inc., Underwriters Insurance Company, American Home Assurance Company, Houston Casualty Company and Reliance Insurance Company, have brought this motion so that they might clear up any issue as to the propriety of the filing of their affidavits of claim against the proceeds of the sale of the Kimisis III.
[3] During the past two years a substantial number of ships have been sold by Federal Court Order here in Vancouver. The Kimisis III was one of a group of four ships sold by the Court in February and March of 1999. The first two vessels, the Ypapadi and the Golden Trinity, were sold by Orders of 12 February 1999. At the hearing of the sale applications several of the counsel present made the point that a sale order for the Nel, in December of 1997, resulted in some confusion about the final filing date for affidavits of claim through the use of the term "prior to" rather than the more usual "on or before", in reference to the cut-off date.
[4] "Prior to", as a quasi-adverb meaning "before", ought to be avoided except possibly, as Fowler1 points out, in formal writing. Somehow it escaped in the case of the Nel order. Resolving that neither the escape nor the confusion should happen again, the Ypapadi and Golden Trinity orders specifically used the term "on or before" to set a time within which lien claimants might file affidavits of claim.
[5] Next in the series of the sales came the Zoodotis. The sale order followed the format used in the Golden Trinity, complete with a proper "on or before" stipulation as to filing of lien claims.
[6] In the case of the fourth ship, the Kimisis III, the sale ordered was not one by the Sheriff, as in the first three ships, but rather was a provident sale arranged by the mortgagee. The Nel emerged again as a precedent. Despite the recognized problems with "prior to", its by now universal condemnation against use in ship sale orders in Vancouver, and its acknowledgement by all as an unneeded quasi-adverb that ought to be avoided and, notwithstanding the intention of the Court, "prior to" again escaped. It caught two counsel off-guard, for they tried to file affidavits of claim, finalized and obtained in a timely manner, on 15 February, a day late.
[7] Mr. Morneau, on receipt of a request for directions received from the Montreal Registry, quite properly in my view, gave a direction 16 April 1999, to file several affidavits of claim. On the same day and independent of Mr. Morneau, I made a similar order as to two affidavits which had been tendered for filing at the Vancouver Registry on 15 April 1999.
[8] There was some suggestion that the directions allowing late filing were improper. Perhaps this suggestion is on the basis of National Bank of Greece S.A. v. Macoil Inc., a brief decision of 14 April 1986 in appeal A-39-86, noted (1986) 4 W.D.C.P. 457, 38 A.C.W.S. (2d) 176, to the effect that failure to file affidavits of claim within the time set by the Court is a bar to any claim against sale proceeds, the Court of Appeal referring to Rule 1008(2), now Rule 492(2).
[9] It is important to establish the present basis for an extension of time, for the law set out in National Bank of Greece still stands:
| The result of the failure of the Respondents Macoil Inc. and Amphitryon Travel and Shipping Agencies Limited to file their claims within the time prescribed by the Order and Commission for Sale of the Polar Paraguay is that, by virtue of Rule 1008(2), their claims against the proceeds of the sale are barred. |
This present dispensation, in favour of allowing late filing of lien claims, is on a basis unrelated to and not in any way similar to that in National Bank of Greece. In the latter there was a clear late filing. In the present instance, counsel were mislead by a matter overlooked by the Court, an error on the part of the Court. By Rule 397(1) the Court may, within a discretionary time limit, reconsider an order where:
| ... a matter that should have been dealt with has been overlooked or accidentally omitted. |
Furthermore, by Rule 397(2) the Court may at any time correct its errors and omissions:
| Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. |
[10] The Order of 5 March 1999 is corrected to once more expel the pesky quasi-adverb.
ORDER
| Short leave granted on the motion by Triaena Travel and Tourism and Crescent Ship Services Inc. The Order of 5 March 1999, is further amended to delete the words "prior to" in paragraph 9 and to substitute "on or before". The affidavits of claim are now deemed, for all purposes, to have been filed in a timely manner. No costs to either of the Applicants on this motion. |
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
June 8, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: June 8, 1999
COURT NO.: T-38-99
STYLE OF CAUSE: The Royal Bank of Scotland plc.
v.
The Ship "Kimisis III" et al.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated June 8, 1999
APPEARANCES:
| Mr. Chris Wilson for Claimants Triaena Travel and Tourism and Crescent Ship Services |
Ms. Andrea Sterling for Claimants Underwriters Insurance Co. et al.
SOLICITORS OF RECORD:
Campney & Murphy
Vancouver, BC for Plaintiff
Bull Housser & Tupper
| Vancouver, BC for Claimants Triaena Travel and Tourism and Crescent Ship Services |
Gottlieb & Pearson
Montreal, PQ for Claimants Underwriters Insurance Co. et al.
__________________1 Fowler's Modern English Usage, 2nd Edition, 1965, 3rd Edition, 1996, Claredon Press, Oxford.