Panagiotakis v. Attika Shipping Corp., 2001 FCT 1428

Date: 20011220

Docket: T-1620-01

Neutral citation: 2001 FCT 1428

                               ADMIRALTY ACTION IN REM AND IN PERSONAM

BETWEEN:

                         EVANGELOS PANAGIOTAKIS, STYLIANOS DIMITRIDIS,

                         ELEFTERIOS ZEIBEKIS, PANAGIOTIS TZANETOPOULOS,

                               KONSTADINOS PAVLIDIS, ANDREAS PALIOURAS,

                                   PANAGIOTIS KARAGANIS AND ZLATA DUKIC

                                                                                                                                             Plaintiffs

and

ATTIKA SHIPPING CORP.,

GOLDEN SUN CRUISES,

THE OWNERS AND ALL OTHERS INTERESTED

IN THE BUNKERS ABOARD THE VESSEL

"ARCADIA" AND THE FREIGHTS AND SUB-FREIGHTS

FOR THE VESSEL "ARCADIA"

and

THE VESSEL "ARCADIA"

                                                                                                                                         Defendants

                                                        REASONS FOR ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY:

[1]                I am prepared to assume that the Hellenic Industrial Development Bank S.A. (the Bank) can resort to rule 399(1)(b) as a relying provision for its motion for an order reconsidering or varying my order of November 20, 2001.

[2]                However, the sole ground raised by the Bank that can properly be taken into account in reconsideration is the allegation that it did not receive proper and sufficient notice of the taking of the depositions, inter alia, of the Chief Purser, Mr. Paliouras, and of Captain Panagiotakis. All the other grounds raised by the Bank in its motion, to wit, the advisability to admit in evidence the transcripts of three witnesses instead of an affidavit by each crew member and the extension of the bar date to submit claims are matters to be raised in appeal if the Bank so wishes.

[3]                I also note that the sufficiency of evidence by the Plaintiffs to sustain their claim is a matter which could be raised later in the process.

[4]                Upon reading the motion records of the parties and upon hearing the representations of counsel, I am of the view that this motion to reconsider shall be denied with costs. In coming to this conclusion, I adopt the following paragraphs of the written representations filed by the Plaintiffs:

13.           The fact of the matter is that when plaintiffs served their notices of motion to take the testimony of Mr. Andreas Paliouras and Captain Evangelos Panagiotakis, the Bank had not yet intervened in the proceedings by filing a caveat. Nor had it made itself or its interests otherwise known on September 26, 2001, when plaintiffs filed their motion - returnable on October 1^st, 2001 - to take the evidence of Captain Panagiotakis. It was both factually and contextually correct, therefore, for plaintiffs to have stated that all interested parties, as at that time, had been advised of all of the motions for rogatory commission that were made;

14.           If, therefore, the Bank was unaware of the legal proceedings in Canada, and if, as a result, it was unable to attend the depositions of Mr. Paliouras and Captain Panagiotakis, ultimately it has no one but itself to blame. The Bank was not misled by anything or anyone and it cannot rely on this as justification for its inactivity. It purports to have a claim secured by a mortgage worth approximately US $5,000,000 on the ARCADIA. Its inertia faced with its knowledge of what was transpiring with the ARCADIA, knowledge that it had at least as of August 26, 2001, is puzzling to say the least;

15.           Mr. Bishop's complaint, set forth in his affidavit, that the deposition of Captain Panagiotakis was held without notice to him is neither fair nor accurate. The Bank could not have been given notice of the motion made to take Captain Panagiotakis' evidence because it had not made its presence known to any of the parties either extrajudicially or by way of participation in the proceedings.

16.           It falls ill from the mouth of Mr. Papamichalakis to complain, as he does, in paragraphs 9 and 10 of his affidavit that he only found out about the examination of the crew members on October 17, 2001 and could not, therefore, give instructions or that the Bank never received formal notice that such examinations would take place. The Bank is, in every respect, the author of its own misfortune in this regard and neither Mr. Papamichalakis nor Mr. Bishop have given any explanation, much less a credible explanation, as to why the Bank did not act when it first learned of the troubles visited upon the ARCADIA in August 2001 or why, on October 9, 2001, when it saw the international publication, Trade Winds' October 5, 2001 edition - this, according to paragraph 6 of Mr. Papamichalakis' affidavit was on October 9, 2001 - it still took no action until October 16, 2001 to appoint Mr. Bishop.

[5]                For the above reasons, I do not consider that the Bank can claim that, for the purpose of its order dated November 20, 2001, the Court was misled by the proposition that all interested parties had been given notice of the examinations.

[6]                Consequently, this motion shall be denied with costs.

Richard Morneau     

Prothonotary

Montreal, Quebec

December 20, 2001

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-1620-01

ADMIRALTY ACTION IN REM AND IN PERSONAM

Between:

EVANGELOS PANAGIOTAKIS, STYLIANOS DIMITRIDIS, ELEFTERIOS ZEIBEKIS, PANAGIOTIS TZANETOPOULOS, KONSTADINOS PAVLIDIS, ANDREAS PALIOURAS, PANAGIOTIS KARAGANIS AND ZLATA DUKIC

                                                                     Plaintiffs

and

ATTIKA SHIPPING CORP., GOLDEN SUN CRUISES, THE OWNERS AND ALL OTHERS INTERESTED IN THE BUNKERS ABOARD THE VESSEL "ARCADIA" AND THE FREIGHTS AND SUB-FREIGHTS FOR THE VESSEL "ARCADIA" and THE VESSEL "ARCADIA"

                                                                Defendants

PLACE OF HEARING:Montreal, Quebec

DATE OF HEARING:December 17, 2001

REASONS FOR ORDER OF RICHARD MORNEAU, ESQ., PROTHONOTARY

DATED:December 20, 2001

APPEARANCES:

SOLICITORS OF RECORD:

Date: 20011220

Docket: T-1620-01

Montreal, Quebec, December 20, 2001

Present:           RICHARD MORNEAU, ESQ., PROTHONOTARY

       ADMIRALTY ACTION IN REM AND IN PERSONAM

BETWEEN:

EVANGELOS PANAGIOTAKIS, STYLIANOS DIMITRIDIS,

ELEFTERIOS ZEIBEKIS, PANAGIOTIS TZANETOPOULOS,

       KONSTADINOS PAVLIDIS, ANDREAS PALIOURAS,

           PANAGIOTIS KARAGANIS AND ZLATA DUKIC

                                                                                             Plaintiffs

                                                   and

ATTIKA SHIPPING CORP.,

GOLDEN SUN CRUISES,

THE OWNERS AND ALL OTHERS INTERESTED

IN THE BUNKERS ABOARD THE VESSEL

"ARCADIA" AND THE FREIGHTS AND SUB-FREIGHTS

FOR THE VESSEL "ARCADIA"

and

THE VESSEL "ARCADIA"

                                                                                         Defendants

                                               ORDER

This motion by the Bank for a reconsideration of the Order of this Court dated November 20, 2001 is dismissed with costs. The Bank is at liberty to consider its motion record filed on November 27, 2001 as a motion record for the purpose of an appeal to be heard on a date and place to be determined by way of service and filing of a notice of presentation of such appeal.

Richard Morneau       

Prothonotary