Date: 20020311
Docket: T-2157-01
Neutral Citation: 2002 FCT 271
SIMPLIFIED ACTION
BETWEEN:
DONALD JAMES WHYTE
Plaintiff
and
THE OWNERS, EDWARD MASKALL and
ALL OTHERS INTERESTED IN THE DREDGE
"SANDPIPER VI" AND EQUIPMENT
ITS TENDER-TUG AND "A" FRAME,
ISLAND DREDGING CORP. and
ISLAND SAND PIPING CORP.,
formerly called ISLAND SAND SALES LTD.
Defendants
REASONS FOR ORDER
HARGRAVE P.
[1] The Plaintiff had an arrest warrant issued and apparently served on the Defendant dredge "Sandpiper VI" and its equipment. The Plaintiff now says that a portion of the "Sandpiper VI's" equipment, the floating dredging spoils pipeline, has been rented out by either the individual Defendant or the corporate Defendant, Island Sand Piping Corp., and moved so that it may be used by a third party. The Plaintiff, who brings the present motion on short leave, is naturally concerned by the apparent breach of an arrest. Mr. Maskell, who acts for himself and the other Defendants, did not file any material.
[2] The Plaintiff brings this motion for an Order of contempt. However the Plaintiff, who acts for himself, has not properly considered the contempt provisions in the Federal Court Rules, which require first a motion to direct a show cause hearing and then a show cause hearing, before a judge, to determine the issue of contempt itself. I intend to treat this motion as an application for a show cause order. In the present proceeding it is for the applicant to show a prima facie case of a breach of an arrest warrant: see for example The Queen v. Perry [1982] 2 F.C. 519 (C.A.) at 525. Contempt includes interference with a court's arrest of a ship, a point which I shall illustrate in due course.
[3] In order to set this matter down for a hearing before a judge, to determine whether or not there has been contempt, I must, as set out above, determine whether the Plaintiff has established a prima facie case of conduct by which the Defendants have breached an arrest warrant, the existence of which the Defendants were aware.
[4] In opposition to this motion Mr. Maskall gave unsworn testimony to the effect that this particular pipeline was only part of the equipment held by the Defendants, that the pipeline was not named as equipment under arrest, and in his view ought not to be lumped in with the arrested vessel. Mr. Whyte, in addition to his sworn affidavit submitted, not under oath, that the Defendant had only one dredge, that he had done work on the pipeline and that the Defendant's pipeline, as rented out, could only be used by the Defendant on its arrested dredge. I give little weight to the unsworn testimony, however it does lead to a comment on the scope of an arrest.
[5] The courts have, as the many cases demonstrate, included in the definition of a ship all of the vessel's equipment, often pointedly looking to the employment of a ship and the relationship the equipment or appurtenances bear to that ship itself: see for example The "Dundee" (1823) 166 E.R. 39 at 46, 1 Hagg. Ad. 109 at 127, a decision of Lord Stowell of the High Court of Admiralty.
[6] Turning specifically to the scope of an arrest warrant, I will not repeat all that I set out in Pacific Tractor Rentals (V.I.) Ltd. v. The Ship "Palaquin" (1997) 115 F.T.R. 224 at 226 and following: it is sufficient to say that not only equipment aboard the ship, but also any portions of a vessel's equipment which have been removed and taken ashore before the arrest, may be caught by the arrest warrant. This is a concept that has clearly been set out by the text writers as a general proposition arising out of The "Alexander" (1812) 165 E.R. 1310:
A warrant of arrest on a ship covers everything belonging to it as part of its equipment, even items which are physically detached from it. (Meeson on Admiralty Jurisdiction and Practice, Lloyds of London Press, 1993, at page 124.)
Passages similar to that in Meeson also appear in Wiswal on The Development on Admiralty Jurisdiction Since 1800, Cambridge University Press, 1970 at page 184 and Roscoe on Admiralty Jurisdiction and Practice, 5th edition, Stevens & Sons, 1931 at page 276.
[7] In the present instance there is a prima facie case that the dredge spoils pipeline was caught by the arrest, based on the Plaintiff's motion and material.
[8] The Plaintiff's motion and material, shorn of irrelevancies, seeks first what is perhaps a practical solution, the acceptance of the movement and use of the arrested pipeline by a third party, but with a share of rental proceeds going to satisfy the claim in return for an after the fact consent to movement, rental and use of the pipeline. I am uncertain, given the leverage which the Plaintiff may now have whether, on the one hand, this is perhaps akin to garnishment before judgment, a procedure not available in the Court, but a solution which, if agreeable between the parties, could be a pragmatic solution or whether, on the other hand, it is a pressure tactic given the alternative which the Plaintiff seeks. As an alternative, the Plaintiff seeks to have the Defendant held in contempt. Third, the Plaintiff wishes an Order that Fraser River Pile & Dredge, said to have rented the pipeline from the Defendant owners and then moved it, return the pipeline. Finally, the Plaintiff seeks an amendment to the Statement of Claim to address an error in the addition of his damage accounting.
[9] The amendment, to correct the mechanical error in the Statement of Claim, is granted.
[10] At this point I do not propose to deal with the request for an Order that Fraser River Pile & Dredge stop using the pipeline but, if that becomes necessary, it should be brought to the attention of the judge hearing the contempt proceeding.
[11] The movement of a ship or piece of equipment that is under arrest is a most serious matter and can lead to a finding of contempt. This is only in part because it deprives a plaintiff of a proper remedy. At least equally to the point, ". . . it is important that the Court's process of arrest and actions in rem should remain inviolate, as far as that can be achieved, and that any violations of that process should be punished appropriately.": The "Synova" [1976] 1 Lloyds 40 at 41, a decision Mr. Justice Brandon. In The "Synova" the contempt amounted merely to the removal of the court's warrant, after the debt for which the arrest had been made was paid, but without the permission of the court. That was considered serious enough to attract a fine of £ 100 some 25 years ago.
[12] Similarly, in The "Merdeka" [1982] 1 Lloyds 401, Mr. Justice Sheen was faced with a situation in which the Master of the vessel, knowing her to be under arrest, moved the ship and took her out of the jurisdiction. In The "Merdeka" the Master, after having reached Holland and been confronted with legal proceedings in that jurisdiction, had a change of heart. He wrote a contrite apology, which was taken into account by the court for what it regarded as a serious contempt. It appears that the apology, together with a voluntary return of vessel and person to London, got the Master off with an assessment of costs of £ 2,000 and a fine of £ 350, even though Mr. Justice Sheen pointed out that not only was it a case of serious contempt, but also that proceedings of that nature were necessary in order to impress on others the consequences of flouting the orders of the court.
[13] I have referred to The "Synova" and The "Merdeka" not in prejudgment, but rather to demonstrate that the movement and use of an arrested ship, or its arrested equipment, without the permission of the court, is a serious matter indeed and may lead to a finding of contempt. Similarly, a contempt proceeding is also a serious matter. That is one of the reasons that the procedure is broken down into two parts. The first step is for a show cause order requiring the person allegedly in breach of the arrest warrant to appear before a judge to hear proof of the contempt and to be prepared to present any defence: see Rule 467(1). To issue such a show cause order, which is within the jurisdiction of a prothonotary, I must, as I have already said, be satisfied that there is a prima facie case that contempt has been committed.
[14] In the present instance the Plaintiff's affidavit is brief and does contain various irrelevancies, however I am satisfied from the material that there is a prima facie case that a pipeline forming part of the equipment of the arrested dredge "Sandpiper VI" is being rented from its owner and that it has been moved. A show cause order will therefore issue, returnable on 25 March 2002.
[15] For the guidance of the parties, the material required to initially obtain a show cause order, including supporting affidavits, does not need to meet the level of disclosure of facts which is demanded at the second stage, the show cause hearing itself: see, for example, The Queen v. Perry (supra) at 524-525 and 746278 Ontario Ltd. v. Courtot (1990) 29 F.T.R. 302 at 310-311, where Mr. Justice MacKay allowed the plaintiffs time to provide the defendants with full particulars and material, following the initial show cause hearing and before the contempt hearing, so that the defendant might have reasonable notice of all of the facts and a reasonable time within which to put together a response. In the present instance the Defendants are well aware of the facts, but should have time to consider their position and to organize a response.
[16] I would caution the parties, as did Mr. Justice MacKay in Courtot at page 311, that the burden is on the plaintiff to establish the contempt charges, proof of which is to be made by viva voce evidence, unless either the facts are agreed by the parties, or the parties agree to proof being made by affidavit in whole or in part. Any affidavit evidence which is allowed should be direct and to the affiant's own knowledge.
[17] Costs shall be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Colombia
11 March 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2157-01
STYLE OF CAUSE: Donald James Whyte v. The Dredge "Sandpiper IV" et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 11, 2002
REASONS FOR ORDER: HARGRAVE P.
DATED: March 11, 2002
APPEARANCES:
Mr. Donald Whyte FOR PLAINTIFF
Mr. Edward Maskall FOR DEFENDANT
SOLICITORS OF RECORD:
FOR PLAINTIFF
FOR DEFENDANT