Date: 20010719
Docket: A-656-97
Neutral citation: 2001 FCA 238
CORAM: RICHARD C.J.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
DAVID GREELEY
Appellant
and
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP
"TAMI JOAN" and HER MAJESTY
THE QUEEN IN RIGHT OF THE
PROVINCE OF NEW BRUNSWICK
Respondents
Heard at St. John's, Newfoundland, on June 1, 2001.
Judgment delivered at Ottawa, Ontario, on July 19, 2001.
REASONS FOR JUDGMENT BY: RICHARD C.J.
CONCURRED IN BY: ROTHSTEIN J.A.
SEXTON J.A.
Date: 20010719
Neutral citation: 2001 FCA 238
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
DAVID GREELEY
Appellant
and
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP
"TAMI JOAN" and HER MAJESTY
THE QUEEN IN RIGHT OF THE
PROVINCE OF NEW BRUNSWICK
Respondents
RICHARD C.J.
[1] This is an appeal from the decision of Mr. Justice Gibson, ((1997), 135 F.T.R. 290).
[2] The appellant (plaintiff) entered into a charterparty agreement with the owner of the vessel "Tami Joan" for the period of May 15, 1992 to December 25, 1992. As the appellant later discovered, the vessel was subject to a mortgage held by the Province of New Brunswick [hereinafter New Brunswick], which had fallen into arrears. When the appellant and the owner of the Tami Joan allowed the insurance on the vessel to lapse, New Brunswick, in its capacity as mortgagee, seized the vessel while it was in port.
[3] On November 12, 1992, the appellant commenced an action against "The Owners and All Others Interested in the Ship "Tami Joan" and Her Majesty in Right of New Brunswick (Represented by the Minister of Fisheries and Aquaculture, Fisheries Development Board, of the Province of New Brunswick)."
[4] By the order of the Honourable Mr. Justice MacKay ((1996), 113 F.T.R. 66), New Brunswick was removed as a second defendant, and the following portions were struck from the Statement of Claim:
9. The plaintiff states that by virtue of the supply of the equipment, supplies and improvements to the said vessel and his lawful possession of the said vessel the Plaintiff is entitled to a possessory maritime lien on the said vessel in priority to any claim or purported claim of the Second Defendant.
AND the Plaintiff claims as follows:
...
(d) Damages in relation to the equipment, supplies and improvements converted by the Second Defendant to its own use - $35,777.00;
(e) Special and general damages against the Second Defendant respecting loss of use of the Defendant Vessel for the period October 26th, 1992 - December 25th, 1992;
(f) Punitive damages against the Second Defendant;
...
[5] The trial of the action began based on the Amended Statement of Claim. New Brunswick appeared as an interested person in its capacity as mortgagee.
[6] The Amended Statement of Claim claimed the following relief:
a) an Order that the Plaintiff be entitled to possession and use of the Defendant ship;
b) an Order that the Plaintiff is entitled to a possessory maritime lien and a right in rem by virtue of the equipment, supplies and improvements provided to the Defendant ship by the Plaintiff;
c) an Order that such possessory maritime lien ranks in priority to all other claims in relation to the Defendant ship;
d) Special and general damages respecting loss of use of the Defendant vessel for the period October 26, 1992 - December 25, 1992;
e) Interest in accordance with the Judgment Interest Act; and
f) Costs.
[The underlined words were added at the opening of trial.]
[7] The issues considered by the Trial Judge were first, whether New Brunswick was entitled to seize the Tami Joan under its mortgage; second, if so, whether or not the appellant was entitled to a possessory lien and a right in rem by virtue of the equipment, supplies and improvements provided to the Tami Joan by the appellant; third, the priority of any such lien in relation to New Brunswick's claim against the Tami Joan by virtue of its mortgage; fourth, the extent of the equipment, supplies and improvements to which any possessory lien in favour of the appellant extended; and fifth, whether or not the appellant was entitled to special and general damages respecting the loss of the use of the Tami Joan for fishing after the vessel was seized.
[8] With respect to the first issue, the Trial Judge found that the mortgage held by New Brunswick was properly registered. New Brunswick was legally entitled to seize the vessel since the mortgage was in arrears and the owner and the appellant had allowed the insurance on it to lapse, thus jeopardizing New Brunswick's security.
[9] With respect to the second issue, the Trial Judge also concluded that if the appellant was a supplier of materials to the ship, he would have been entitled to a possessory lien up to the time the ship was seized.
[10] With respect to the third issue, the Trial Judge found that the appellant was a supplier of goods and materials to the vessel, and accordingly this provided the basis for a possessory lien. However, since the appellant lost possession of the vessel due to its legal seizure by New Brunswick, and therefore lost his priority with respect to any lien he might have, the appellant held no more than a right to be paid the amount of his lien, as any other creditor.
[11] Thus, the Trial Judge found it unnecessary to consider the fourth issue.
[12] Finally, the Trial Judge concluded, following a thorough review of the evidence, that the appellant was not entitled to special or general damages respecting loss of the use of the vessel for the period October 26, 1992, when the vessel was seized by New Brunswick, to December 25, 1992, when the lease terminated.
[13] Before us on appeal, the appellant sought the following monetary relief from New Brunswick:
1. Damages of $45,000.00 for lost opportunity;
2. Damages of $35,000.00 for lost equipment.
[14] With respect to the claim for lost opportunity, the Trial Judge stated that there was simply no way in which he could conclude that the appellant lost the opportunity to engage in the late-season turbot fishery through seizure of the vessel and went on to further state that even if he were to so conclude, there was absolutely no evidence tendered by which damages could have been calculated.
[15] This finding of fact is supported by the record and there are no grounds to disturb the Trial Judge's finding in this respect, even assuming that this claim is one that could be entertained in the appellant's action in this Court.
[16] While the appellant specifically pleaded relief for damages for the loss of use of the vessel, no specific claim for damages for lost equipment was made. Rather, the appellant pleaded the entitlement to a possessory lien and a right in rem by virtue of the equipment, supplies and improvements provided to the vessel by the appellant.
[17] The Trial Judge concluded that, at the time the action was commenced, there was no basis on which the appellant could proceed in rem to enforce a possessory lien, and any possible statutory right in rem for necessaries and repairs would rank below that of New Brunswick as a mortgagee.
[18] Accordingly, the Trial Judge did not address the issue of damages for lost equipment.
[19] However, on this appeal, this Court was invited to consider the damages flowing from repairs and improvements to the vessel made by the appellant for the fishery based on the material before the Trial Judge.
[20] The only goods which the Trial Judge identified as having been indisputably supplied by the appellant are 71 gill nets and a safety rail.
[21] With respect to the 71 gill nets, the appellant testified that he purchased them from a fisherman in mid-July, 1992, but no invoice or receipt was supplied. Not only is there no evidence of this transaction, but there is no evidence of the price paid. The appellant merely supplied a written estimate for new nets from a retailer, but this has no probative value given that the appellant's nets were not new. Therefore, the appellant has failed to prove damages under this head.
[22] With respect to the safety rail, the plaintiff testified that he paid $1,800.00 for materials and labour. No invoice or receipt was produced. Accordingly, the appellant has failed to prove damages under this head.
[23] With respect to the remaining gear for which damages are now claimed, the record suggests that the gear and equipment were brought on board by the appellant for his own use during the balance of the lease.
[24] The Trial Judge noted that the appellant was extended extensive credit by J. W. Hiscock Sons Ltd. (hereinafter Hiscock) to facilitate his fishing enterprise on the understanding that all the fish landed by the appellant would be processed by Hiscock.
[25] With the exception of the safety rails which the appellant installed on his own initiative, it appears from the record that the gear and equipment was made available by the agents of New Brunswick for return or release to the persons believed to have an interest in such goods. The Trial Judge even noted that the appellant facilitated the return of equipment, materials and gear to Hiscock, a major claimant of the equipment.
[26] The record also discloses that the appellant admitted that he did not own all the gear that was on the vessel, and there is some dispute as to whether he asserted to an agent for New Brunswick who attended at the ship on the occasion of its seizure that, in fact, none of the gear on board belonged to him. It is only later that the appellant asserted a claim of ownership.
[27] The appellant entered into evidence some invoices and receipts, made out to himself and other persons, relating to some of the equipment.
[28] While some of the invoices and receipts may support the appellant's claim that at least part of the remainder of the equipment was delivered to the vessel, and may indicate the costs incurred to prepare the Tami Joan for fulfilling the appellant's needs while under charter, there is no evidence to suggest that such expenditures were made for anything but the purpose of allowing the appellant to engage in the fishery over the balance of the lease.
[29] The terms of the charterparty agreement state:
4. The lessee shall at his own expense operate, maintain and keep in good repair the motor vessel rented and return it in the same condition in which it was received. Specifically the lessee must:
(a) Supply all fuel and lubricants necessary to operate the motor vessel.
(b) Execute all repairs necessary to keep the motor vessel in good running order.
(c) Replace all broken or worn parts.
(d) Return the motor vessel in a clean and unmarred condition.
5. Before the motor vessel is delivered to the lessee the lessee may require an inspection thereof by proper authorities and if the motor vessel is not in a satisfactory condition the cost of inspection shall be paid for by the lessor. If the lessee does not inspect the said motor vessel before he receives it then the lessee is conclusively deemed to have accepted that the motor vessel is in good running order without broken or worn out parts and in a clean and unmarred condition.
[30] This indicates that the appellant, and not the owner, was responsible for any supplies, improvements and repairs made to the vessel during the lease period.
[31] In asserting a claim for damages for the improper conversion of goods by New Brunswick, the appellant is seeking to reintroduce the action in tort which was struck from its Statement of Claim by the April 11, 1996 order of MacKay J. This order was not appealed.
[32] If New Brunswick has improperly converted any property of the appellant, then it might be open to the appellant to take an action against New Brunswick in the courts of that Province.
[33] In the result, even though the appellant disputes other conclusions of the Trial Judge, the appellant cannot succeed.
[34] Accordingly, this appeal will be dismissed with costs.
"J. Richard"
Chief Justice
"I agree
Marshall Rothstein J.A."
"I agree
J. Edgar Sexton J.A."