Date: 20020313
Docket: T-613-00
Neutral citation: 2002 FCT 275
BETWEEN:
FALSE CREEK HARBOUR AUTHORITY
Plaintiff
(Defendant by counterclaim)
AND:
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP SHODAN, THE SHIP SHODAN
and PAUL TAYLOR
Defendants
(Plaintiffs by counterclaim)
[1] This is an action by the plaintiff for judgment for outstanding berthage, dock and storage charges; interest at admiralty rates compounded semi-annually; condemnation of the defendant ship "SHODAN" and its bail; and, costs of this action.
[2] The facts leading up to this dispute are straightforward and may be summarized as follows. The plaintiff False Creek Harbour Authority ("FCHA") is a company incorporated under the Canada Corporations Act and has its office located in Vancouver, British Columbia. The Authority has an agreement with the Minister of Fisheries and Oceans and has acquired a lease of certain lands and waters in Vancouver, namely the False Creek Harbour. Pursuant to the lease, the Minister assigned to the FCHA the operation, management and maintenance of the False Creek Harbour in accordance with the Fishing and Recreation Harbours Act, R.S.C. 1985, c. 30, as amended.
[3] The defendant ship "SHODAN" is a vessel of 29.61 gross tons registered at the Port of Victoria with Official Number 393966 and is owned by the defendant Paul Taylor. On September 15, 1999, Mr. Taylor entered into a Berthage Agreement for berthage space at the plaintiff's harbour. The terms of that agreement contained the following relevant clauses:
3. The Vessel Owner agrees that the charge for berthing the Vessel is payable in advance of berthing the Vessel and must be paid in cash, cheque/money order, Direct Debit, VISA or MasterCard payable to FALSE CREEK HARBOUR AUTHORITY at the False Creek Harbour Office located at 1505 West 1st Avenue, Vancouver, B.C."
4. The Vessel Owner agrees to abide by all applicable statutes, regulations, by-laws and rules, including the Canada Shipping Act, Fishing and Recreational Harbours Act, and its regulations , and local harbour instructions. The Vessel Owner acknowledges that noncompliance may lead to impoundment, removal and/or assessment of penalties against the Vessel.
6. The Vessel Owner agrees to moor and operate the vessel and to maintain the vessel and berth area in a seamanlike manner and not to do or permit anything to be done by the crew, which in the opinion of the Authority may be, or become, a nuisance or disturbance. Except during the period of engine refit, the Vessel shall be capable of moving under the Vessel's own power.
15. In the event that the Vessel Owner fails to vacate the berth as required in paragraph 1 of this Agreement or in the event of any breach of non-performance of any of the other terms or conditions contained herein, the Harbour Authority shall have the right to seize the vessel, remove it from the berth area of the Harbour Authority, exercise a warehouseman's lien and sell the vessel as if the Harbour Authority were warehouseman under the Warehousemen's Lien Act.
[4] On November 5, 1999, a physical altercation took place between the defendant Paul Taylor and another harbour user. As a result, the defendant was charged with assault contrary to section 266 of the Criminal Code. The charge was dismissed on June 15, 2000, on the grounds that the Provincial Court Justice was not satisfied beyond a reasonable doubt that a criminal conviction could be maintained. However, because of the altercation, the False Creek Harbour Authority advised the defendant by letter dated November 16, 1999, that he had breached Harbour Policy and the Berthage Agreement and accordingly, his harbour privileges were revoked. He was instructed to remove his vessel by noon on November 23, 1999, and was warned that failure to do so would result in the vessel being removed for him and he would be liable for all costs incurred.
[5] The defendant replied by letter dated November 19, 1999, stating that "[W]hen I get back from California after the New Year, I will repair my engine with great hast [sic] and be gone with great pleasure." He advised the False Creek Harbour authority that all further correspondence was to be sent to his lawyer. On or about December 22, 1999, the plaintiffs seized the vessel and had it removed to Reed Point Marina. Mr. Taylor's lawyer was advised of this by letter dated December 30, 1999, and was further informed that upon payment of outstanding charges owed to the False Creek Harbour Authority, including the costs of removing the vessel, it would be released to the defendant.
[6] Difficulties ensued at Reed Point Marina and as a result, the vessel was moved to Steveston Harbour Authority. On April 26, 2000, plaintiffs counsel sent a letter to Mr. Taylor stating as follows:
I confirm that on Thursday, April 19, 2000, you attended at your vessel where it was docked at the Steveston Harbour Authority and relocated the vessel down the dock. You removed the lock affixed by the False Creek Harbour Authority and put one of your own on. Your actions are consistent with you having possession, care and custody of the vessel and False Creek Harbour Authority shall proceed on that basis. Accordingly, I point out to you that the moorage at Steveston Harbour Authority is to your account. As well as the safekeeping of the vessel (including insurance, if you wish).
The vessel was arrested on April 19, 2000. The arrest itself does not change the care or custody of the vessel. The care and custody remains with you despite the arrest. The effect of the arrest is that the vessel cannot be moved (even 50 feet down the dock) without the consent of all of the parties or by Order of the Court. To move a vessel while it is under arrest constitutes a contempt of Court. Should you move the vessel again, my client shall pursue the remedies available to it without further notice to yourself.
[7] In addition to moving the vessel, the defendant stripped its engine. At the time of the hearing of this matter, the vessel remained docked at Steveston Harbour Authority and the defendant was in possession of the engine.
[8] After carefully considering the submissions of the parties, I am satisfied that the plaintiff's claim must be allowed. Although Mr. Taylor relies on the fact that the criminal charges against him were dismissed, the evidence is nevertheless unequivocal that the False Creek Harbour Authority acted within its authority when it asked Mr. Taylor to remove his vessel after the physical altercation which occurred on November 5, 1999; an incident which indisputably breached the False Creek Harbour Policy and the Berthage Agreement entered into by the parties.
[9] Nor can it be disputed that there was a contractual agreement between the parties, as evinced by clause 15 of the Berthage Agreement quoted above, to incorporate the rights and remedies of the Warehouse Lien Act. Clause 2 of that Act provides that:
2(1) Subject to section 3, every warehouser has a lien on goods deposited with the warehouser for storage, whether deposited by the owner of the goods or by the owner's authority, or by an person entrusted with the possession of the goods by the owner or by the owner's authority.
(2) The lien is for the amount of the warehouser's charges for all of the following:
(a) all lawful charges for storage and preservation of the goods;
(b) all lawful claims for money advanced, interest, insurance, transportation, labour, weighing, coopering and other expenses in relation to the goods;
(c) all reasonable charges for any notice required to be given under this Act, and for notice and advertisement of sale, and for sale of the goods if default is made in satisfying the warehouse lien.
[10] Accordingly, I am allowing the plaintiffs' claim for the Bailiff's bill in the amount of $3,671.67; the bill for Reed Point Moorage in the amount of $481.50; the docking charges at Steveston Harbour Authority which were in the amount of $2,919.43 at the time of trial but which will need to be adjusted to the date of this judgment; all outstanding docking charges at False Creek Harbour Authority which, as I indicated at the hearing of this matter, are to be assessed at the commercial vessel rate ; and interest on all amounts owing from the date of their incurrence to the date of payment. In addition, I am ordering the vessel and its bail condemned as well as ordering the defendant to return the vessel's engine to the plaintiff.
[11] For these reasons, the plaintiff's claim is allowed and the defendant's counter-claim is dismissed. Costs to the plaintiff are to be assessed under column 1 of the Table to Tariff B of the Federal Court Rules.
JUDGE
OTTAWA, Ontario
March 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-613-00
STYLE OF CAUSE: FALSE CREEK HARBOUR AUTHORITY v. THE
SHIP "SHODAN" ET AL.
PLACE OF HEARING: VANCOUVER
DATE OF HEARING: JANUARY 8, 2002
REASONS FOR ORDER AND ORDER : ROULEAU, J.
DATED: MARCH 13, 2002
APPEARANCES:
SHELLEY CHAPELSKI FOR THE PLAINTIFF
PAUL TAYLOR DEFENDANT ON HIS OWN BEHALF
SOLICITORS OF RECORD:
BROMLEY CHAPELSKI FOR THE PLAINTIFF
VANCOUVER