Date: 19980316
Docket: A-53-97
CORAM: PRATTE J.A.
DENAULT J.A.
DESJARDINS J.A.
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:
THE SHIP "KRISTINA LOGOS", ULYBEL ENTERPRISES
LIMITED, JOSE PRATAS, and THE OWNERS,
CHARTERERS AND OTHERS INTERESTED IN THE SHIP
"KRISTINA LOGOS"
APPELLANTS-Defendants
- and -
MARIO NEVES AND CARLOS NEVES
RESPONDENTS-Plaintiffs
- and -
HER MAJESTY THE QUEEN
RESPONDENT-Intervenor
Heard at Montreal, Quebec, on Wednesday, March 4, 1998.
Judgment delivered at Ottawa, Ontario, on Monday, March 16, 1998.
REASONS FOR JUDGMENT BY: PRATTE J.A.
CONCURRED IN BY: DENAULT J.A.
DESJARDINS J.A.
Date: 19980316
Docket: A-53-97
CORAM: PRATTE J.A.
DENAULT J.A.
DESJARDINS J.A.
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:
THE SHIP "KRISTINA LOGOS", ULYBEL ENTERPRISES
LIMITED, JOSE PRATAS, and THE OWNERS,
CHARTERERS AND OTHERS INTERESTED IN THE SHIP
"KRISTINA LOGOS"
APPELLANTS-Defendants
- and -
MARIO NEVES AND CARLOS NEVES
RESPONDENTS-Plaintiffs
- and -
HER MAJESTY THE QUEEN
RESPONDENT-Intervenor
REASONS FOR JUDGMENT
PRATTE J.A.
[1] This is an appeal from a decision of Pinard J. dismissing an appeal from an order of the Prothonotary.
[2] On April 2, 1994, officers of the Department of Fisheries and Oceans seized the ship "Kristina Logos" in accordance with the Fisheries Act on the ground that she had been used in the commission of an offence under the Act. Shortly thereafter, charges were laid under the Act against the owners of the ship. Insofar as we know, those charges are still pending.
[3] A few weeks after that seizure, the "Kristina Logos" was arrested in this action pursuant to the Federal Court Rules. She was also arrested in another action in the Trial Division.
[4] More than two years later, Her Majesty filed a notice of motion under rules 1010 and 1007 for leave to intervene in this action for the sole purpose of seeking an order releasing the "Kristina Logos" from the two arrests under the Federal Court Rules and directing that she be sold at terms and conditions to be prescribed by the Court. In support of that motion, affidavit evidence was filed establishing that, since the seizure under the Fisheries Act, Her Majesty had incurred heavy expenditures for the preservation of the vessel, and that the costs of maintaining the vessel would normally continue to accrue until the completion of the proceedings which appeared so complex that it was not expected that the vessel could be released from seizure and arrest within the foreseeable future.
[5] That motion was consented to by the plaintiffs in this action and in the other action in the Trial Division; it was opposed by the appellants, the owners of the "Kristina Logos". In spite of that opposition, the motion was granted by the Prothonotary whose decision was confirmed by the order of Pinard J. against which this appeal is directed.
[6] It is common ground that, after the commencement of this appeal, in accordance with the order of the Prothonotary, the "Kristina Logos" was sold at conditions approved by Cullen J. and the proceeds of the sale were deposited with the Court.
[7] The parties also agree that the decision to be rendered on this appeal will affect neither the validity of the sale of the ship nor the intervenor's right to participate in the distribution of the proceeds of the sale.
[8] In these circumstances, the interesting legal questions raised by the appellants' counsel concerning Her Majesty's right to intervene in this action and obtain an order that the ship be sold appear to have become entirely moot. A judgment allowing or dismissing the appeal would not affect the rights of the parties. For that reason, I do not think that we should entertain this appeal since this is not, in my opinion, one of these exceptional cases where the Court should rule on an academic question.
[9] I would dismiss the appeal without costs.
"Louis Pratte"
J.A.
"I concur.
Pierre Denault"
"I concur.
Alice Desjardins, J.A."
FEDERAL COURT OF APPEAL
Date: 19980316
Docket: A-53-97
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:
THE SHIP "KRISTINA LOGOS", ULYBEL ENTERPRISES
LIMITED, JOSE PRATAS, and THE OWNERS,
CHARTERERS AND OTHERS INTERESTED IN THE SHIP
"KRISTINA LOGOS"
APPELLANTS-Defendants
- and -
MARIO NEVES AND CARLOS NEVES
RESPONDENTS-Plaintiffs
- and -
HER MAJESTY THE QUEEN
RESPONDENT-Intervenor
REASONS FOR JUDGMENT