Incremona Salerno Marmi Affini Sicialiani v. Castor (Ship), 2004 FC 1297

Date: 20040921

Docket: T-2330-00

Citation: 2004 FC 1297

BETWEEN:

                              INCREMONA-SALERNO MARMI AFFINI SICILIANI

                                                            (I.S.M.A.S.) s.n.c. and

                                                   DANZAS (CANADA) LIMITED

                                                                                                                                             Plaintiffs

                                                                         - and -

                                  THE OWNERS AND ALL OTHERS INTERESTED

                                    IN THE SHIPS "CASTOR" and "KATSURAGI",

                                       THE SHIPS "CASTOR" and "KATSURAGI",

                                        HAPAG-LLOYD CONTAINER LINE, GmbH

                                 ATLAS TRAMPSHIP REEDEREI GmbH & Co. m.s.

                              "CASTOR" KG and TAMA LAKE SHIP HOLDINGS SA

                                                                                                                                         Defendants

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                The Plaintiffs claimed damages and other relief arising out of the shipment of a consignment of polished granite from Italy to Canada. The parties agreed among themselves to seek a declaration as to whether the Marine Liability Act, s. 46(1) applied on the facts therein. On December 4, 2001, the Court ordered that said subsection did apply, gave certain directions to the Defendants and awarded costs against them in any event of the cause. Those Defendants associated with the ship "Castor" (hereafter the "Castor Defendants") appealed. On December 2, 2002, the Federal Court of Appeal allowed their appeal (in court file A-30-02), set aside the December 4, 2001 order of the Federal Court, declared that s. 46(1) did not apply and awarded costs in both courts to the "'Castor Defendants". I issued a timetable for written disposition of the bill of costs of the "Castor Defendants".

[2]                The Plaintiffs and the "Castor Defendants" led evidence and submissions, comparable to what was led during the assessment of the bill of costs of the defendants associated with the ship "Katsuragi" (hereafter the "Katsuragi Defendants"), concerning my jurisdiction to proceed in the face of a settlement document. For the reasons given for the assessment of the costs of the "Katsuragi Defendants", reported at [2004] F.C.J. No. 1275 (A.O.), I conclude that I should proceed with the assessment of the costs of the "Castor Defendants".

[3]                The Plaintiffs conceded the disbursements claimed at $865.60. The Plaintiffs argued that there is no basis for an allowance for item 27 (claimed at the mid-range value of 2 units for services including a response to a Notice of Status Review). Further, as this assessment of costs is straightforward, the claim under item 26 should be reduced from 3 to 2 units.

[4]                For item 27, the "Castor Defendants" argued that a mid-range allowance for item 27 is appropriate given that their response to the Notice of Status Review, being the only submission other than that of the Plaintiffs, was followed by the Court in its subsequent directions. An allowance under item 26 of 3 units, from the available range of 2 - 6 units, would be reasonable given the very detailed affidavit and written representations led in support of the bill of costs.

Assessment

[5]                I find that the "Castor Defendants" have met the threshold for item 27 consistent with Mitchell v. Canada (Minister of National Revenue - M.N.R.), [2003] F.C.J. No. 1530 (A.O.). In matters such as Maxim's Bakery Ltd. v. Maxim's Ltd., [2000] F.C.J. No. 2138 (A.O.), I have allowed indemnity under item 27 for a reply to a notice of status review. I allow the 2 units claimed here. Given that I think the difficulty of this assessment of costs was comparable to that for the "Katsuragi Defendants", I allow only 2 units for item 26. The bill of costs of the "Castor Defendants", presented at $3,952.80, is assessed and allowed at $3,834.55.

(Sgd.) "Charles E. Stinson"

     Assessment Officer

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               T-2330-00

STYLE OF CAUSE: INCREMONA-SALERNO MARMI AFFINI

SICILIANI (I.S.M.A.S.) s.n.c. et al.

v.

THE SHIPS "CASTOR" and "KATSURAGI" et al.

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                     CHARLES E. STINSON

DATED:                                                                                  September 21, 2004

SOLICITORS OF RECORD:

Bromley Chapelski                                                                    for Plaintiffs

Vancouver, BC

Bull, Housser & Tupper                                                             for the Owners and

Vancouver, BC                                                                         All Others Interested in

the Ship "Katsuragi" et al.

Bernard & Partners                                                                   for the Owners and

Vancouver, BC                                                                         All Others Interested in

the Ship "Castor" et al.