Date: 20030512
Docket: T-391-03
Citation: 2003 FCT 584
Action in rem against the Ship M.T. "POLAR" and
in personamagainst the OWNERS, CHARTERERS, AND
ALL OTHERS INTERESTED IN THE SHIP M.T. "POLAR"
BETWEEN:
A. PASCHOS - K. KATSIKOPOULOS S.A.,
a company carrying on business in Athens, Greece
Plaintiff
and
BODYGUARD SHIPPING LTD., a company
carrying on business in Piraeus, Greece
and
TRITON MARINE SA, a company
carrying on business in Piraeus, Greece
and
ERMIS MARITIME CORPORATION,
a company carrying on business in Piraeus, Greece
and
THE OWNERS, CHARTERERS AND ALL
OTHERS INTERESTED IN THE SHIP M.T. "POLAR"
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] There are two motions by the defendants before the Court in opposition to the action commenced in this Court by the plaintiff on March 7, 2003 and the arrest by this plaintiff of the ship "POLAR" on March 13, 2003.
[2] The defendants' principal motion, which we will examine later, is to strike out the statement of claim or, in the alternative, to stay the proceedings in this Court and to review the amount of the performance bond in the form of a letter of credit that was supplied by the defendants in order to obtain the release of the "POLAR" on March 17, 2003.
[3] In defence to this motion by the defendants, the plaintiff has submitted a record in which it has included two affidavits: the affidavit of Mr. Athanasios Paschos dated March 21, 2003 and the affidavit of Mr. Spyridon Vlassis also dated March 21, 2003.
[4] These affidavits, and a further affidavit of Mr. Vlassis dated March 27, 2003 (hereinafter the impugned affidavits) resulted in the defendants' filing a motion, characterized here as preliminary, to strike out the said affidavits for the purposes of the merits of the defendants' principal motion.
[5] We will proceed, first, with the analysis of this preliminary motion by the defendants, and subsequently consider their principal motion.
I. Defendants' preliminary motion
[6] This motion, an unusual one to say the least, seeks the striking out of the impugned affidavits not because of the identity of the affiants or their knowledge of the allegations in the affidavits, but rather because the notary public who received these affidavits allegedly failed to comply with the requirements of Greek law as to the terms and conditions that ought to surround the administration of oaths to affiants. Accordingly, the defendants submit, this notary public was no longer recognized within the meaning of paragraph 52(e) and section 53 of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, and the affidavits that he was being asked to receive have lost any such quality and weight in this Court for the purposes of opposing the principal motion of the defendants.
[7] Sections 53 and 52(e) are reproduced below, in that order.
|
53. Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act. |
53. Les serments, affidavits, affirmations solennelles ou déclarations déférés, recueillis ou reçus à l'étranger par toute personne mentionnée à l'article 52 sont aussi valides et efficaces et possèdent la même vigueur et le même effet, à toutes fins, que s'ils avaient été déférés, recueillis ou reçus au Canada par une personne autorisée à y déférer, recueillir ou recevoir les serments, affidavits, affirmations solennelles ou déclarations qui sont valides ou efficaces en vertu de la présente loi. |
|
52. This Part extends to the following classes of persons: ... (e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive;
(Emphasis added) |
52. La présente partie s'applique aux catégories suivantes de personnes : ... e) les fonctionnaires judiciaires d'un État étranger autorisés, à des fins internes, à recevoir les serments, les affidavits, les affirmations solennelles, les déclarations ou autres documents semblables;
(mes soulignements) |
[8] In this case, the defendants do not dispute that the notary public is an official who is authorized in Greece to receive the affidavits. It is the terms and conditions surrounding the swearing of the impugned affidavits on which the defendants focus.
[9] Even on the assumption that the defendants are right in their criticism of the work performed by the Greek notary public, it does not seem to me that the aforecited sections of the Evidence Act require ipso facto that this Court is obliged to strike out the allegations by these affiants. These sections of the Evidence Act appear to me to pertain much more to the identity of the individuals capable of receiving an oath than they do to the applicable penalties where there are problems in the work that was done.
[10] The record in this case does not indicate that there was any collusion between the affiants and the notary public who was to receive their oaths with a view to contravening the requirements of Greek law. The record indicates that at all relevant times the affiants wished to file some allegations that they considered true. I think, within the context of my residual discretion, that this is the essential thing. To strike out the impugned affidavits owing to deficiencies attributable to the notary public would, in the circumstances, be akin to elevating form over substance, and I refuse to do so in the circumstances.
[11] This preliminary motion by the defendants to strike out affidavits is dismissed, therefore, costs in the cause.
[12] I shall now examine the defendants' principal motion.
II. Defendants' principal motion
[13] As mentioned previously in paragraph [2], the principal motion by the defendants is for striking out the statement of claim or, in the alternative, staying the proceedings in this Court and reviewing the amount of the performance bond in the form of a letter of credit that was supplied by the defendants in order to obtain the release of the "POLAR" on March 17, 2003.
[14] The following are the essential facts that have led the defendants to so move.
[15] From March to May, 2001, the plaintiff, at the defendants' request, did some work on the "POLAR" and other ships belonging to the defendants.
[16] In relation to the "POLAR", on August 6, 2001 the plaintiff informed the defendants in writing that the cost of the work done on this ship was 2,284,067.88 euros.
[17] The defendants allege in evidence that the total cost of this work was instead 1,966,250.42 euros, pursuant to an agreement with the plaintiff based on discussions held in September and October 2001, thus subsequent to the notification of August 6, 2001. The defendants paid this amount of 1,966,250.42 euros and therefore consider that they have nothing further to pay.
[18] The plaintiff acknowledges receiving the latter amount but argues that there never was any agreement with the defendants to reduce the 2,284,067.88 euros to 1,966,250.42 euros. According to the plaintiff, this 1,966,250.42 euros represents only a part of the total cost of the work and was billed separately in October and December 2001 because the defendants pointed out to the plaintiff that only this amount could be paid in 2001.
[19] Thus there is a difference of about 375,000 euros between the parties' claims concerning the total cost of the work.
[20] This is the amount that the plaintiff sued for in December 2002 in Greece. The same parties, cause and purpose are involved in the action commenced in March 2003 in this case in the Federal Court of Canada.
Analysis
[21] In regard to the defendants' application to strike out the plaintiff's action in this Court on the ground of lis pendens, I do not intend to grant it since at the end of the day the plaintiff would be prepared to withdraw its action in Greece in favour of maintaining its action in Canada alone.
[22] The existence of a single action leads us, then, to consider the request to stay the proceedings under section 50 of the Federal Court Act, R.S.C. 1985, c. F-7, on the basis of the doctrine of forum non conveniens.
[23] In this regard, I fully agree with the defendants' remarks in paragraphs 26 to 33 of their written submissions, and more particularly with those contained in paragraph 29, which read:
29. Other than the vessel finding itself temporarily in Canada, there is no connection between any aspect of the present litigation and Canada. The matter involves services to a vessel undertaken in Greece, with all negotiations and inspections in Greece, with the parties operating in Greece, and with any agreement that may exist between them being governed by Greek law. It is therefore in the interest of justice that the present action be stayed in favour of the parties litigating the present matter in Greece.
[24] Accordingly, it will be ordered that the proceedings in this case be stayed in favour of the litigation already under way in Greece. As contemplated by the defendants, the letter of credit now in place in relation to the present litigation will have to be maintained and be amended to include any judgment that may emanate from the Greek courts in relation to the similar litigation already under way in that country.
[25] It remains to look at the amount of the performance bond.
[26] In this case the conflict comes down to determining whether the sum of about 375,000 euros is or is not owing to the plaintiff.
[27] In Atlantic Shipping (London) Ltd. v. Ship Captain Forever et al. (1995), 97 F.T.R. 32, this Court noted, at page 34, the applicable principle:
The general principle, that a plaintiff, having arrested a vessel, is entitled to security in an amount sufficient to cover the reasonably arguable best case, together with interests and costs, capped at the value of the wrongdoing vessel, ...
[28] In this case, under the applicable principle, I think the position taken by the plaintiff can certainly be adopted for the purposes of establishing the performance bond. The amount covered by the letter of credit consists of the sum of 375,000 euros increased by an amount to cover interest and possible costs. There is no reason to intervene in this regard.
[29] An order will therefore be issued to provide that the proceedings in this case are stayed in favour of the litigation already under way in Greece. As contemplated by the defendants, the letter of credit now in place in relation to the present litigation shall be maintained and be amended to include any judgment that may emanate from the Greek courts in relation to the similar litigation already under way in that country.
[30] Since success on this principal motion of the defendants is divided, there will be no order as to costs.
Richard Morneau
Prothonotary
Montréal, Quebec
May 12, 2003
Certified true translation
Suzanne Gauthier, LLB, C Tran
FEDERAL COURT OF CANADA
TRIAL DIVISION
ate: 20030512
Docket: T-391-03
Action in rem against the Ship M.T. "POLAR" and in personam against the OWNERS, CHARTERERS, AND ALL OTHERS INTERESTED IN THE SHIP M.T. "POLAR"
BETWEEN:
A. PASCHOS - K. KATSIKOPOULOS S.A.,
a company carrying on business in Athens, Greece
Plaintiff
and
BODYGUARD SHIPPING LTD., a company
carrying on business in Piraeus, Greece
and
TRITON MARINE SA, a company
carrying on business in Piraeus, Greece
and
ERMIS MARITIME CORPORATION,
a company carrying on business in Piraeus, Greece
and
THE OWNERS, CHARTERERS AND ALL
OTHERS INTERESTED IN THE SHIP M.T. "POLAR"
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-391-03
STYLE: Action in rem against the Ship M.T. "POLAR" and in personam against the OWNERS, CHARTERERS, AND ALL OTHERS INTERESTED IN THE SHIP M.T. "POLAR"
BETWEEN:
A. PASCHOS - K. KATSIKOPOULOS S.A.,
a company carrying on business in Athens, Greece
Plaintiff
and
BODYGUARD SHIPPING LTD., a company
carrying on business in Piraeus, Greece
and
TRITON MARINE SA, a company
carrying on business in Piraeus, Greece
and
ERMIS MARITIME CORPORATION,
a company carrying on business in Piraeus, Greece
and
THE OWNERS, CHARTERERS AND ALL
OTHERS INTERESTED IN THE SHIP M.T. "POLAR"
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 31, 2003
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED: May 12, 2003
APPEARANCES:
Deborah Hutchings for the plaintiff
Peter Pamel for the defendants
Page : 2
SOLICITORS OF RECORD:
McInnes Cooper for the plaintiff
St. John's, NL
Borden Ladner Gervais for the defendants
Montréal, Quebec