Date: 20021004
Docket: T-1698-95
Neutral citation: 2002 FCT 1041
ACTION IN REM AGAINST THE VESSELS "VOLTA RIVER"AND "KETA
LAGOON"AND IN PERSONAM AGAINST STATE SHIPPING CORPORATION
(BLACK STAR LINE), POLAR STEAMSHIP LINE AND PUM YANG EXPRESS
U.S.A. INC., THE OWNERS, CHARTERERS AND ALL THOSE INTERESTED
IN THE VESSELS "VOLTA RIVER"AND "KETA LAGOON"
Between:
KOREA HEAVY INDUSTRIES &
CONSTRUCTION CO. LTD.
and
DOMINION BRIDGE INC.
and
SSANGYONG FIRE & MARINE
INSURANCE CO. LTD.
and
ALL THOSE PERSONS HAVING AN
INTEREST IN THE CARGO LADEN ON
BOARD THE VESSEL "VOLTA RIVER"
(bills of lading No. PYE-106687 and/or No. 1)
Plaintiffs
and
POLAR STEAMSHIP LINE
and
PUM YANG EXPRESS U.S.A. INC.
and
STATE SHIPPING CORPORATION
(BLACK STAR LINE)
and
THE VESSEL "VOLTA RIVER"
and
THE OWNERS, CHARTERERS AND ALL
OTHERS INTERESTED IN THE VESSEL
"VOLTA RIVER"
and
THE VESSEL "KETA LAGOON"
and
THE OWNERS, CHARTERERS AND ALL
OTHERS INTERESTED IN THE VESSEL
"KETA LAGOON"
Defendants
and
PUM YANG EXPRESS U.S.A. INC.
Plaintiff in indemnity
and
POLAR STEAMSHIP LINE and
STATE SHIPPING CORPORATION
(BLACK STAR LINE)
Defendants in indemnity
TAXATION OF COSTS - REASONS
RICHARD LARABIE, ASSESSMENT OFFICER
[1] Upon consideration of the motions on behalf of Polar Steamship Line, State Shipping Corporation (Black Star Line) and Pum Yang Express U.S.A. Inc., for dismissal of the present action due to non-compliance with the rules of the Federal Court of Canada and for delay in prosecution of the action, the Court, Richard Morneau, Esq., Prothonotary, rendered the following order:
L'action des demanderesses est rejetée avec dépens en faveur de chacune des défenderesses. Les actions en garantie intentées par l'une ou l'autre des défenderesses sont en corollaire rejetées, le tout sans frais.
[2] The Defendants therefore filed their bills of costs and appointments were issued for their assessment on September 10, 2002 at 10:00 a.m.
[3] Present at the hearing of the assessments were Mr. Trevor Bishop, representing Polar Steamship Line and acting on behalf of Bull, Housser and Tupper for State Shipping
Corporation (Black Star Line) and Mr. Peter Pamel, representing Pum Yang Express U.S.A. Inc. Mr. J. Kenrick Sproule, representing the Plaintiffs, who had presented a motion to be removed as solicitors of record the day before had submitted a letter on that same day advising the Assessment Officer of his non-attendance to the taxation due to lack of instructions from his clients.
[4] Being fully satisfied from the Court record that Plaintiffs had been made aware of the appointments for taxation, I proceeded with the assessments of Defendants' bills of costs.
[5] At the outset, parties were advised that it was not my position to contest the bills of costs on behalf of opposing parties in their absence. However, that I had reservations and concerns in relation to many items and disbursements claimed, particularly since all third party claims had been dismissed without costs.
[6] Mr. Bishop was in agreement with my comments in relation to costs on the third party issue and had already prepared an amended bill of costs on behalf of Black Star Line and filed it at the hearing. Mr. Pamel began to argue that third party costs had been incurred within the parameters of the main action and began to refer to "Bullock" and/or "Sanderson" orders but finally abandoned his argument and advised that he would amend his bill of costs when assessed later on.
[7] Bearing in mind that bills of costs are not normally amended without allowing the opposing party an opportunity to respond, I still proceeded with their assessments since requests for certain items were abandoned and none were added.
[8] Due to the afore-mentioned concerns most items in the three bills of costs were looked at one by one and since both counsels commented on one another's claims, only one set of reasons will be rendered but a separate certificate will be issued for each bill of costs.
[9] Mr. Bishop's opening remarks were to the effect that "costs should be granted against all three Plaintiffs jointly and that is why he has prepared only one bill of costs for the three, for only one condemnation". To this I can only reply that my authority to proceed with this assessment is Prothonotary Morneau's order of April 18, 2002, wherein he dismissed all Plaintiffs action with costs and that I will assess the bills of costs as presented by counsel.
[10] Mr. Bishop advised that in both bills of costs of Polar Steamship Line and of Black Star Line the maximum amount of units in column III have been requested because this case was a long arguable case that lasted more than five years, that a lot of work has been performed and that the actual costs to his clients are well over $121,000. He further added that Defendants, in this case, should have been able to recover costs based on the maximum amount of units of column IV due to the negligence of Plaintiffs to bring this case to trial.
[11] Mr. Pamel, on the same issue, advised that he also claimed the maximum amount of units of column III for the most part of his bill because the allowable costs that may be claimed will not, for a long shot, compensate his clients' losses.
[12] On my question to Mr. Pamel if the issues of this case were complicated his reply was that, aside for one interesting issue (dual limitation funds), the matter was in fact not complicated. However, the manner in which Plaintiffs chose consciously to litigate this action caused it to be complicated.
[13] Having considered the documentation on file and the amount of work performed and considering the circumstances of this litigation, I will not intervene in the amount of units claimed.
[14] One last issue needs to be addressed before actually assessing the bills of costs. The issue is that all Defendants have included, in their bills of costs, lump sums granted by the Court as costs in two orders in the Trial Division and in one order rendered by the Court of Appeal in relation to an interlocutory motion.
[15] My comments were to the effect that since the costs had already been established by the Court they should not have been included in the bills of costs and that the orders were their instrument to obtain payment. Furthermore, if I was to include the amounts in the certificates, they would have the possibility to execute twice and obtain double payment for the same costs.
[16] Both Mr. Bishop and Mr. Pamel advised having included the amounts in the bills of costs to make it easier for all parties concerned, that having only one piece of paper would be convenient and both gave an undertaking not to execute the orders and to only execute the certificates.
[17] Due to the undertakings given by Messrs. Bishop and Pamel, representing all Defendants that have filed a bill of costs, that they will execute the certificates only, I will allow the inclusion of the amounts in the certificates of taxation.
Assessment of costs of Polar Steamship Line
[18] Claim of $150.00 under item 1(1)b) of tariff A is disallowed. Fees are not charged under tariff A for the filing of a statement of defence. These fees were incurred by the Defendant upon filing its statement of claim as Third Party Plaintiff against Co-Defendant and Third Party Defendant State Shipping Corporation. Since third party claims were consequently dismissed without costs, this amount must be disallowed.
[19] The request of 7 units under items 2, 5(a), 5(c) and 5(d) are allowed; the request of $1,500.00 under 5(b), as stated earlier in these reasons, will be included in the certificate. The amount of $800.00 requested under item 5(e) will be reduced to $600.00 in conformity with the order of Prothonotary Morneau dated March 11, 2002 and will also be included in the certificate of taxation.
[20] 7.5 units will be allowed under item 6(a) since the actual time spent in Court was 2.5 hours (2.5 hours X 3 units).
[21] The request of 6 units under item 6(b) will be reduced to 1.5 units since the actual time spent in Court was 30 minutes (.5 X 3 units).
[22] The requests of 5 units under item 7, 8(a), 8(b), of 24 units under item 9(a) and of 15 units under item 9(b) are allowed.
[23] As for the many requests made under item 10 for the preparation of written representations relating to the various status review orders:
- First of all, the date of March 30, 2001 specified under item 10(b) of the bill of costs should be corrected to show December 13, 1999.
- All claims for activities in relation to the various status review orders were made under item 10. Mr. Bishop, at the hearing, advised that these requests should be allowed under item 27 and made reference to Maxim's Bakery Ltd. v. Maxim Ltd., David SGAYIAS et al., Federal Court Practice, Toronto, Carswell, 2002, p. 792 which states "Fees for a response to a notice of status review may be allowed under item 27 of Tariff B." He also advised that if he could not claim the units under item 27, his requests under item 10 remained, whatever was possible.
- Mr. Pamel, on this issue, did not add to Mr. Bishop's arguments but answered my question inquiring if all status review orders dealt with the main action only. His reply was that all status review orders were addressed to Plaintiffs to move on with the main action. That the third party claims did not add anything to the work or efforts and that all would have been done anyway. He further stated that many of these orders dealt with discoveries and the only discoveries that took place were of Plaintiffs' representatives.
- For better comprehension, I read Assessment Officer Stinson's decision in Maxim's Bakery Ltd. v. Maxim Ltd. (December 31, 2000), Doc. T-2997-90, particularly paragraph 6 at page 3 which states "I approve item 27 for the response to the notice of status review which addressed in part the requisition for hearing." (my underlining). My understanding of the Assessment Officer's decision is that he exercised his discretion and decided to allow units under 27 because the reponse to the notice of status review also addressed a requisition for hearing.
- If I was to allow units for the preparation of written representations in response to status review orders, I would also allow them under item 27 since there are no provisions in the Tariff for this type of activity. Item 10 is for the preparation of a pre-trial conference including the memorandum and no pre-trial conferences were held in this case.
- In the case at hand, all status review orders (approximately 10) have been rendered by Richard Morneau, Prothonotary, and he chose to grant costs on only two of them. I therefore determine that if the other orders are silent as to costs, it was his intention. Furthermore, I stand to be corrected but my understanding is that costs on status review orders are only granted in special circumstances because it is a case management activity instigated by the Court. Therefore costs would be ordered by the Court.
- Due to the afore-mentioned, all requests under item 10 with the exception of items 10(b), 10(c) and 10(d)viii) are disallowed. The request of 3 units for item 10(b) is allowed under item 27 and the requests under items 10(c) and 10(d)viii) have already been compensated by a lump sum of $1,500.00 in the August 23rd order of 2001.
[24] The amount of $1,500.00 shown in item 21, granted by the Court of Appeal, will also be included in the certificate, as stated earlier in these reasons.
[25] Having considered arguments of counsel, the requests of 6 units under item 26 and of 3 units under item 27 are also allowed.
[26] Therefore the amount of $11,330.00 plus the lump sums of $3,600.00 will be allowed for assessable services totalling $14,930.
Disbursements
Item 1 Mr. Bishop claims $281.92 for commercial photocopying and $635.00 for in-house photocopying totalling $916.92. In reply to my question inquiring if all photocopies had been made in relation to the main action and not for the third party claims, Mr. Bishop's reply was that the affidavit in support should be sufficient to allow the amounts claimed.
Mrs. Wilson in her affidavit, filed in support of Polar Steamship Line's bill of costs, at paragraph 3 of page 2 states, in relation to photocopying, "Most of them relate to the many written representations resulting from the numerous status review orders of the Court arising from the lengthy case management of this action."
Having disallowed the requests made in relation to the status review activities, the requests for disbursements should in part, be affected accordingly. In the absence of direction for the determination of how many photocopies were made for the status review activities, I will allow $458.46 for photocopies representing 50% of the amount requested.
Items 2, 3 Mr. Bishop having argued that all the disbursements have been made for the
and 4 main action and had nothing to do with the third party claims, the amount of $1,266.00 requested for items 2 and 3 for Stenographer's fees for examinations on discovery and for item 4 for Bailiff's charges are allowed.
Items 5 The amounts of $108.86 and $603.57 are claimed for telephones and telefax.
and 6 Mr. Bishop argued that they were all long distances and were not normal costs for the office. These amounts will be reduced by 50% as for photocopies.
Item 8 An amount of $1,000.00 is claimed for consultant fees and an amount of $792.20 is claimed for a survey report. The invoice for the survey report, identified as exhibit DW-6 to the Wilson affidavit, refers to "two ships". Since the amount claimed should be for the M/V "Volta River" only, the amount claimed should be reduced to $442.20. The Wilson affidavit states that these expenses were necessary and vital to the defence of this action. Mr. Bishop argued that "had the action not been instituted, the advice of consultants would not have been required." In the absence of contestation, the amounts of $1,000.00 and of $442.20 will be allowed.
The total amount for disbursements will be allowed at $3,522.88.
[27] The bill of costs of Polar Steamship Line is assessed and allowed at $14,930.00 for assessable services and $3,522.88 for disbursements. A certificate of taxation will be issued in the amount of $18,452.88.
Assessment of costs of State Shipping Corporation (Black Star Line)
Assessable services
[28] The request of 7 units under items 2, 5(i) and 5(iv) are allowed. The lump sums of $1,500.00 and $1,000.00 (claimed under item 5) granted by the Court will be included in the certificate of taxation given the undertaking made by Mr. Trevor Bishop at the hearing.
[29] The request of 3 units for 2 hours representing $660.00 under item 6(i) will be reduced to $60.50 since the hearing only lasted 11 minutes. The request of 6 units under item 6(iii) will be increased to 7 units since the actual time spent in Court was 2.5 hours.
[30] The request of 5 units made under item 7 is allowed.
[31] The request of 10 units under item 8(i) and 8(ii) for the preparation of an examination for discovery will be reduced to 5 units since the examination was of Mr. Ha on both days.
[32] The request of 24 units made under item 9 is allowed.
[33] All requests made under item 10, as stated earlier in these reasons, will be disallowed except for the $1,500.00 granted by Prothonotary Morneau in his order of August 23, 2001. This amount has already been included under item 5. As for the claim of 3 units under item 10(ii) in relation to Prothonotary Morneau's order of January 11, 2000, wherein he granted "costs in the cause", it must also be disallowed since Black Star did not file any written representations in relation to the status review order, in fact, the first written representations of Black Star Line were filed on December 14, 2000.
[34] The amount of $1,500.00 shown under item 21 will be included in the certificate.
[35] Following my comments of being without authority to allow any units under item 24, Mr. Bishop argued that it was highly unfair for a party not to recover travel time since the Federal Court system obliges a party to travel across the country for the convenience of other parties. Since the Court's discretion has not been requested in relation to travel time I must disallow the 20 units requested.
[36] For the same reasons expressed earlier, the request of 6 units under item 26 and of 3 units under item 27 are allowed.
[37] Therefore, the amount of $7,870.50 plus the lump sums of $4,000.00 totalling $11,870.50 will be allowed for assessable services. The amount of $830.94 will be added for the taxes (PST) requested, totalling $12,701.44.
Disbursements
- The amount of $1,156.00 claimed for photocopies will be reduced to $578.00 and the amount of $283.00 for colour copying will be reduced to $141.50 for the reasons expressed earlier and since the Cienciala affidavit states "that copies relate mainly to the many written representations..."
- Due to Mr. Bishop's argument to the effect that all telefax were made by long distance and were not normal in-house costs, this claim will be allowed but reduced by 50% due to the status review activities. The sum of $1,249.28 will be allowed.
- The amount of $816.66 claimed for long distance calls will also be reduced by 50% for a total of $408.33.
- The amount of $300.12 claimed as delivery (courier) expenses will be disallowed being considered as in-house operating expenses.
- The other amounts claimed for disbursements are allowed as requested except for travel expenses that represent part of the concerns that I had mentioned at the outset. Unfortunately, the affidavit supporting this claim along with the attached exhibits (24 pages) and counsel's comments were not very helpful in determining the amounts that should be allowed. However, I will have to make do with what I have.
- The first amount claimed is $4,939.40 for the attendance at Montreal for the examination for discovery of Mr. Ha. The record shows that the examination took place on March 23 and 24, 2000 (duration of 6 hours on the 23rd and of 2 hours on the 24th). The invoices provided for this claim covered the period of March 22 to March 28, 2000 and included a trip to Quebec City. However, at the hearing, Mr. Bishop requested that the invoices for the Quebec City trip be removed.
- Due to the afore-mentioned I will only allow the first hotel invoice of "Le Sheraton Hôtel" covering the period of March 22 to 24, 2000 included, totally $583.00. I will also allow the invoices provided for airport taxes and taxis totalling $52.00 and not having anything to rely on for meals and incidentals I will allow the current allowances permitted by Treasury Board which is $62.00 per day for four days totalling $248.00.
- For airfare, for the three trips requested, it appears that only one invoice was provided in the amount of $3,931.43 for a business class trip from Vancouver to Montreal/Dorval. Since there is well established jurisprudence in relation to airfare, I will not allow "business class". In order to allow a fair amount, verification of current rates were made with a Government Travel Agency. The information received was as follows:
- 0 From Vancouver to Montreal, with a stay-over on a Saturday night, the costs ranges from $586.00 to $765.00;
- 0 Without a stay-over on a Saturday night $3,098.00;
- 0 Current "business class" $3,610.96.
Considering the afore-mentioned and since the disbursements for Quebec City (week-end) were removed, I will allow $3,000.00 for airfare. Therefore, the total amount allowed for Mr. Ha's examination will be of $3,883.00.
- The amount of $4,7555.55 claimed for the attendance at the March 11th motion will be reduced to $3,000.00 since Prothonotary Morneau only allowed airfare.
- For the attendance at the April 8th motion. The amount of $382.00 will be allowed for the hotel, $186.00 for meals and incidentals for April 7, 8 and 9, 2000 ($62.00 X 3), $90.00 for airport taxes and taxis and $3,000.00 for airfare totalling $3,658.00.
- Finally an amount of $377.85 USD is claimed for payment to an agent for expenses incurred for the retrieval of documents from the vessel. In the absence of opposition and the expense being proven by affidavit I will allow it. However, after asking Mr. Bishop for the Canadian equivalent of the amount, his reply was that since it was such a small amount, he would be more than happy to secure a CDN $1.00 equivalent. Due to the afore-mentioned I will allow the $377.85 in Canadian funds.
- The amount of $185.90 claimed for taxes will be disallowed on disbursements. The total amount allowed for disbursements will therefore be $15,080.80.
[38] The bill of costs of State Shipping Corporation (Black Star Line) is assessed and allowed at $12,701.44 for assessable services and $15,080.80 for disbursements. A certificate of taxation is issued in the amount of $27,782.24.
Assessment of costs of Pum Yang Express USA Inc.
Assessable services
[39] The amounts claimed under items 1 and 2 of tariff A are disallowed since they deal with the third party claims.
[40] Request of 6 units in item 1 of tariff B is disallowed for the same reasons stated above.
[41] Request of 7 units under item 2(a) is allowed. Requests made under items 2(b) and 2(c) are disallowed since they deal with third party issues. Claim of 4 units under item 2(d) is disallowed since the Court of Appeal fixed costs at $1,500.00.
[42] Claims under items 4(a) and 4(b) are also disallowed since they also deal with the third party issues.
[43] Claim of 7 units under item 5(a) will be allowed. The amount of $1,500.00 referred in 5(b) will form part of the certificate given the undertaking made at the hearing by Mr. Pamel. The claim of 6 units under item 5(c) will be allowed. The 6 units claimed under item 5(d) will be disallowed since the Court of Appeal fixed costs at $1,500.00.
[44] The 12 units claimed under item 6(a) will be reduced to 7 since the actual duration of the hearing was 2.5 hours (3 X 2.5 = 7). The 6 units claimed under item 6(b) will be disallowed for the same reasons stated for 5(d).
[45] The claims of 5 units under items 7, 8(a) and 8(b), of 15 units under item 9(a) and of 24 units under item 9(b) will be allowed.
[46] The units claimed under item 10, except for the $1,500.00 granted as a lump sum in the order of Prothonotary Morneau dated August 23 2001, will be disallowed as expressed earlier.
[47] The amount of $1,500.00 claimed under 21 will form part of the certificate of taxation given Mr. Pamel's undertaking.
[48] Having considered solicitors' arguments, the units claimed under items 26 and 27 will also be allowed.
[49] Therefore, the amount of $9,900.00 will be allowed for assessable services plus the lump sums of $3,000.00 totalling $12,900. As requested, $903.00 will be added for GST and $1,035.23 for PST for a total amount of $14,838.23.
Disbursements
- As stated in the assessment of the other bills of costs since the units claimed for the status review activities have been disallowed, only 50% of the amounts claimed for photocopies and telecopier will be allowed. Therefore, $150.43 and $124.73 will be allowed for photocopies and $868.28 for telecopier.
- The amounts of $32.12 for telephones, $165.07 for taxis, $70.00 for courier, $13.69 for postage, $47.75 for bank charges, $143.50 for Court run and $46.37 for overtime will be disallowed being considered as in-house operation expenses.
- The amounts of $1,846.98 for stenography and $19.00 for bailiff services will be allowed.
- The travel expenses of $1,000.00 and of $250.00 are claimed, as stated by Mr. Pamel "to meet with his clients in New York." These expenses must be disallowed since Mr. Pamel did not specify any circumstances that would enable me to allow them.
- The amount of $235.14 requested for "current receipts" was withdrawn by Mr. Pamel.
- Therefore, the amount allowed for disbursements will be $3,009.42.
[50] The bill of costs of Pum Yang Express U.S.A. Inc. is assessed and allowed at $14,838.23 for assessable services and $3,009.42 for disbursements. A certificate of taxation wil be issued in the amount of $17,847.65.
RICHARD LARABIE
ASSESSMENT OFFICER
MONTREAL, QUEBEC
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1698-95
ACTION IN REM AGAINST THE VESSELS "VOLTA RIVER" AND "KETA
LAGOON" AND IN PERSONAM AGAINST STATE SHIPPING CORPORATION
(BLACK STAR LINE), POLAR STEAMSHIP LINE AND PUM YANG EXPRESS
U.S.A. INC., THE OWNERS, CHARTERERS AND ALL THOSE INTERESTED
IN THE VESSELS "VOLTA RIVER" AND "KETA LAGOON"
Between:
KOREA HEAVY INDUSTRIES &
CONSTRUCTION CO. LTD.
and
DOMINION BRIDGE INC.
and
SSANGYONG FIRE & MARINE
INSURANCE CO. LTD.
and
ALL THOSE PERSONS HAVING AN
INTEREST IN THE CARGO LADEN ON
BOARD THE VESSEL "VOLTA RIVER"
(bills of lading No. PYE-106687 and/or No. 1)
Plaintiffs
and
POLAR STEAMSHIP LINE
and
PUM YANG EXPRESS U.S.A. INC.
and
STATE SHIPPING CORPORATION
(BLACK STAR LINE)
and
THE VESSEL "VOLTA RIVER"
and
THE OWNERS, CHARTERERS AND ALL
OTHERS INTERESTED IN THE VESSEL
"VOLTA RIVER"
and
THE VESSEL "KETA LAGOON"
and
THE OWNERS, CHARTERERS AND ALL
OTHERS INTERESTED IN THE VESSEL
"KETA LAGOON"
Defendants
and
PUM YANG EXPRESS U.S.A. INC.
Plaintiff in indemnity
and
POLAR STEAMSHIP LINE and
STATE SHIPPING CORPORATION
(BLACK STAR LINE)
Defendants in indemnity
PLACE OF TAXATION: Montreal, Quebec
ASSESSMENT TOOK PLACE ON SEPTEMBER 10, 2002
ASSESSMENT OF COSTS -
REASONS BY: RICHARD LARABIE, ASSESSMENT OFFICER
DATE OF REASONS: OCTOBER 4, 2002
APPEARED: Trevor Bishop for Polar Steamship Line and State Shipping Corporation (Black Line)
Peter Pamel for Pum Yang Express U.S.A. Inc.
SOLICITORS OF RECORD:
Brisset Bishop representing Polar Steamship Line and, Montreal, Quebec on behalf of Bull, Housser & Tupper, State Shipping Corporation (Black Star Line)
Borden Ladner Gervais representing Pum Yang Express Montreal, Quebec U.S.A. Inc.
The Law Office of J. Kenrick Sproule representing the Plaintiffs
Montreal, Quebec