Date: 20040528
Docket: T-531-03
Citation: 2004 FC 780
BETWEEN:
JPMORGAN CHASE BANK (formerly The Chase Manhattan Bank),
a body corporate, and J.P. MORGAN EUROPE LIMITED (formerly
Chase Manhattan International Limited), a body corporate
Plaintiffs
- and -
MYSTRAS MARITIME CORPORATION, a body Corporate, THE
OWNERS AND ALL OTHERS INTERESTED IN THE SHIP
"LANNER" and The Ship "LANNER"
Defendants
ASSESSMENT OF COSTS - REASONS
(Sheriff's Costs and Plaintiffs' Costs under Tariff B)
FRANÇOIS PILON
Assessment Officer
Sheriff's Bill of Costs
[1] On July 11, 2003 the Court approved the sale of the Ship "Lanner"to the Plaintiff JPMorgan Chase Bank and the proceeds of the sale (US $6,900,002.00) were deposited with Metcalf & Company, Barristers and Solicitors, in Trust. These funds were deemed for all purposes to be monies paid into this Court. Mr. Aylmer P. Le G. Gribble, of Gibson Marine Consultants Limited, had been appointed acting Sheriff (thereafter Sheriff) of the Court in the Order for sale dated June 9, 2003 and put into possession of the Ship. That Order also set his commission at three-quarters of one percent (0.75%) of the total sale price. Reproduced below is paragraph 20 of the said Order authorizing various expenses to be incurred by the Sheriff during the sale process:
"All reasonable expenses of advertisement of the sale, agency fees, insurances and all other costs, disbursements, commissions and other expenses such as costs of berthage, security, reproduction of plans, photographs, courier services, survey reports, appraisal etc. necessary to giving effect to this order and the commission of sale and for the preservation, safekeeping or maintenance of the Ship incurred by the Sheriff and/or funded by or on behalf of the Plaintiff shall be treated as Sheriff's costs payable immediately after taxation by an assessment officer in priority from the proceeds of the sale. Notwithstanding Rule 490 (5) the Sheriff's account shall be submitted directly to the assessment officer who shall promptly examine it and who shall issue a certificate, authorizing all or such portion of the account as he or she deems appropriate, whereupon the amount set out in the certificate shall be paid out to the Sheriff or as the Sheriff shall direct, out of the proceeds of sale".
[2] On May 6, 2004 Mr. Anil Mohan, counsel for the Plaintiff, filed the Sheriff's bill of costs and the Plaintiffs'bill of costs with four affidavits in support, along with proof of service upon those Claimants who still had an interest in the proceeds of sale. On May 11, 2004, I wrote to the solicitors for the Claimants advising them of the time and place of the assessment of the two bills of costs.
[3] Counsel for all Claimants, except one, confirmed in writing that they would not be appearing at the assessment because of prior agreements reached amongst themselves or claims satisfied. Mr. Vincent Prager, acting for Claimant Unitor ASA, filed written representations objecting to the disbursement of crew wages in the amount of US $417,428.00 for lack of evidence. On May 25, 2004 Mr. Mohan served and filed a supplementary affidavit of Russell J. Herder, enclosing the relevant invoices proving payment of all crew members. Further to the filing of the latter's affidavit Mr. Prager advised that he now considered that portion of the Sheriff's costs to be fully substantiated and thus withdrew his objection.
[4] The other expenses incurred by the Sheriff for the purposes of appraisal of the Ship, advertising its sale and conducting the judicial sale appear to be reasonable and are all supported by invoices; they will be allowed as presented. A certificate of the assessment of the Sheriff's costs will issue as follows:
i) In US dollars to:
a) JPMorgan Chase Bank US$ 484,386.00
b) Aylmer P. Le G. Gribble US$ 55,372.52
ii) In Canadian dollars to:
a) JPMorgan Chase Bank Can$ 126,170.32
[5] The amounts of Can$ 150.00 (the filing fee for the statement of claim) and of Can$ 6,451.50 (counsel fees under Tariff B) are deducted and removed from the Sheriff's account and transferred to the Plaintiffs'bill of costs because these two items do not properly form part of the Sheriff's costs. As a result there will be two separate certificates of assessment issued, one with regards to the Sheriff's expenses and the other for the Plaintiffs'assessable services under the Tariff.
Plaintiffs'Bill of Costs
[6] With reference to paragraph (5) above the amount of Can$ 150.00 is added to the Plaintiffs'bill of costs which had been filed by Mr. Mohan on May 6, 2004. Claims for counsel fees under items 1, 5 (twice), 6 (twice), 23 and 26 are submitted under Columns IV and V. In his submissions in response to the bill of costs, Mr. Prager wrote:
"We also note that in the Plaintiffs'Bill of Costs, counsel are claiming the maximum number of units allowable under Column IV and V of the table in Tariff B. At the very most, we suggest that the allowable fees be assessed in accordance with the middle range of Column III."
[7] Rule 407 provides that "Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B". In "Consorzio del Prosciutto di Parma v. Maple Leaf Meats"[2003] 2 F.C. 451, Mr. Justice Rothstein writes at page 5:
"Under rule 407, where the parties do not seek increased costs, costs will be assessed in accordance with column III of the table to Tariff B".
Column III is the default column applicable to all party-and-party costs unless an order of the Court directs otherwise.
[8] Counsel for the Plaintiffs argues that, in exercising his discretion, the assessment officer may consider the factors listed at Rule 400 (3). In particular Mr. Mohan makes specific reference to:
a) the result of the proceeding;
b) the amounts claimed and the amounts recovered;
c) the importance and complexity of the issues;
d) the amount of work;
e) any other matter that it considers relevant.
[9] I am taking these factors into consideration in deciding the unit levels to be given to each item of assessable services. Mr. Mohan states that thirty (30) claims had been filed by various creditors from around the world. Negotiations between counsel for the Plaintiff and the various Claimants has led to the settlement of thirteen (13) claims and the substantial settlement of ten (10) others. I am easily persuaded of the extent of the work done, of the importance and complexity of the issues dealt with by Mr. James Gould and Mr. Mohan in achieving this high rate of success. The various Court proceedings involving the "Lanner"are voluminous and credit is given to counsel in supervising and coordinating the sale process with the Sheriff, its agent and the Ship Management team. I believe it can be stated that their efforts have been to the benefit of all creditors. In the circumstances I find that the highest level of column III is well deserved and amply justified.
[10] The items of the Plaintiffs'bill of costs are assessed and allowed (including item 26 for preparation and attendance at the assessment) at the maximum units of column III. A certificate of assessment will issue in the amount of Can$ 4,704.00. I thank counsel for the effort they have put into material and submissions.
Halifax, Nova Scotia
May 28, 2004 François Pilon
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-531-03
STYLE OF CAUSE: JPMorgan Chase Bank et al v. Mystras Maritime Corporation et al
PLACE OF ASSESSMENT: Halifax, NS
DATE OF ASSESSMENT: May 26, 2004
ASSESSMENT OF COSTS -
REASONS - BY: François Pilon
DATED: May 28, 2004
APPEARANCES BY:
Anil Mohan For Plaintiffs
SOLICITORS OF RECORD:
Metcalf & Company For Plaintiffs
Barristers & Solicitors
Halifax, NS
Stikeman Elliott LLP For Claimant Unitor ASA
Barristers & Solicitors
Montreal (Que)
Borden Ladner Gervais LLP
Barristers & Solicitors
Montreal (Que) For Claimants:
(1) Kent Trade & Finance Inc.
(2) E.N. Bisso & Son, Inc.
(3) Chengxi Shipyard
(4) Huashun Ocean Shipping
Supply Co. Ltd.
(5) Suderman & Young Towing
Company, L.P.
(6) Praxis Energy Agents S.A.
(7) CP3500 International Inc.
(8) Gulf Marine Industrial
Supplies Inc.
(9) Robin Maritime Agencies, LLC
(10) Robin Ship Agency (South
Atlantic) LLC
(11) Ashland Specialty Chemical
Company
(12) Marine Fuels Ltd.
Robinson Sheppard Shapiro
Barristers & Solicitors
Montreal (Que) For Claimants: (1) Hellas Supply Co. Inc.
(2) International Paint Inc.
De Man Pilotte
Barristers & Solicitors
Montreal (Que) For Claimants: (1) Bunkers International Corp.
(2) O.E. Durrant Inc.
(3) Calogeras and Master Supplies
Inc.
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