Date: 20000718
Docket: T-595-96
BETWEEN:
JASON PRIOR AND CLINTON PRIOR
Plaintiffs
-and-
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP "TALAPUS", THE SHIP "TALAPUS",
MARK GRIMWOOD and CLOVERLEAF SHIPPING LTD.,
Defendants
Docket: T-2204-96
BETWEEN:
STEPHEN GOREHAM AND MERLE GOREHAM
Plaintiffs
-and-
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP "TALAPUS", THE SHIP "TALAPUS",
MARK GRIMWOOD and CLOVERLEAF SHIPPING LTD.,
Defendants
REASONS FOR JUDGMENT
(Edited version of reasons rendered orally from the Bench
in Vancouver, British Columbia on May 9, 2000)
LAFRENIÈRE P.
[1] At the conclusion of the hearing, I decided that I should immediately state my decision. I therefore asked the court reporter to record my reasons for decision and indicated that they would form the basis of my reasons for judgment once edited. The parties were subsequently invited to make written submissions as to costs.
[2] Two procedural matters were dealt with at the commencement of the hearing. First, by agreement of the parties, the two actions (Court Nos. T-2204-96 and T-595-96) were ordered consolidated to be heard together in accordance with Rule 105. Secondly, Mr. Mark Grimwood was granted leave pursuant to Rule 120 to represent himself and his company, Cloverleaf Shipping Ltd. (hereinafter referred to as "Cloverleaf").
[3] The Plaintiffs' actions relate to claims for unpaid seaman's wages advanced pursuant to Part 3 of the Canada Shipping Act for various periods of service, or periods of availability for service, in 1995 and 1996 with respect to the "TALAPUS", a ship owned by Cloverleaf and the propriety of set-offs levied by the Defendants.
[4] Six witnesses were heard at trial: Merle Goreham and his brother Stephen Goreham, Jason Prior and his brother Clinton Prior, Thomas Noack and Mark Grimwood. The two Prior brothers, both residents and citizens of Australia, testified by way of a telephone conference on consent of the parties and in accordance with Rule 32 of the Federal Court Rules, 1998.
Credibility of witnesses
[5] The terms of engagement of the Plaintiffs were reached orally and not committed to writing. Few contemporaneous records were produced at the hearing to shed light on their agreement regarding hours of work, periods of service, rates of pay, time of payment or deductions from pay. Consequently, these terms had to be established viva voce by the witnesses. Since conflicting evidence was adduced, the determination of a number of facts came down to a question of credibility.
[6] Stephen Prior"s credibility was not seriously challenged by the Defendants. I found him to be a frank and credible witness and therefore accepted his testimony in its entirety.
[7] His brother, Merle Goreham, struck me as an honest individual. However, his recollection of events was at times vague and even contradictory, probably due to the passage of time. Ultimately, I looked for corroborating evidence before giving any weight to his testimony.
[8] While Jason and Clinton Prior were not physically present at the hearing, I did get the opportunity to hear them. They came across as forthright witnesses. Their recollection of the events had faded, however they were resolute with respect to crucial facts and were not, in my view, prone to exaggeration. The few inconsistencies which came out in cross-examination did not seriously undermine their credibility.
[9] As for Mr. Noack, little weight was given to his evidence as it proved to be irrelevant to the issues in these proceedings.
[10] Mr. Grimwood was the only witness called by the Defendants. He testified in great detail about the events surrounding the hiring of the Plaintiffs and their subsequent failed fishing trip together. Although Mr. Grimwood spoke eloquently and appeared to have an excellent memory, the lack of supporting documentation to corroborate his version of the agreement reached with the Plaintiffs left me perplexed. His testimony regarding his arrangement with the Plaintiffs was self-serving and, in my view, disingenuous.
[11] I found Mr. Grimwood to be cavalier in his attitude towards the Plaintiffs"wage claims. I believe that Mr. Grimwood intended to take advantage of these rather unsophisticated and trusting individuals. His failure to commit to writing the terms of engagement created uncertainty and ultimately was intended to frustrate the Plaintiffs in their attempts to recover their wages. In case of conflict, I have therefore preferred the evidence of the Plaintiffs over that of Mr. Grimwood.
Wage claim by Jason and Clinton Prior
[12] The Plaintiffs Jason and Clinton Prior testified that they entered into an oral contract of service with Mr. Grimwood to work as deck hands on the "TALAPUS", to perform general maintenance work in preparation for and during a planned voyage from Vancouver to Alaska and Japan. It is not disputed that Mr. Grimwood was contracting as a principal of Cloverleaf. The agreement was that both these Plaintiffs would perform preparatory work on the "TALAPUS" from June 1 to June 15, 1995 at an hourly rate of $15. Jason Prior testified that he worked 171 hours under this arrangement. Clinton Prior stated that he worked the same number of hours. Jason Prior also testified that it was agreed that both he and his brother would be paid $150 per day when they actually boarded the ship for the trip to Alaska on June 16, 1995.
[13] The Defendants do not seriously dispute the number of hours performed by the Prior brothers from June 1 to June 16, 1995. In fact, the Defendants credited Jason Prior with 173 hours and Clinton Prior with 166 hours in an accounting document prepared after the ship TALAPUS returned from the failed trip. I conclude, based on the evidence presented before me, that the Priors did in fact work the hours they claim from June 1 to June 16. In particular, I accept as reliable the time record kept by Clinton Prior which was introduced as an exhibit in these proceedings.
[14] I would allow the claim by the Priors for 171 hours each at $15 per hour for the period from June 1 to June 16, 2000.
[15] Jason Prior testified that on or about June 17, 1995, he started to work with the crew of the "TALAPUS" to prepare the ship to sail to Japan. He further stated that he reached an agreement with Mr. Grimwood to be paid $150 a day during the trip. It was his expectation that he would be paid this daily wage from June 16 until the trip ended. Clinton Prior testified that his understanding was that he would be paid $150 per day for "sea time".
[16] Mr. Grimwood testified that the Priors did not perform any work after June 16 until the ship left Vancouver in the early morning of June 21, 1995. He further insisted that the Priors had taken off the weekend of June 17 and 18.
[17] In cross-examination, the Priors acknowledged that they may have taken some time off prior to departure. Based on the evidence before me, I conclude that the Priors did in fact take the weekend off and did not perform any work on June 17 and 18. I would therefore disallow their claim for wages for June 17 and 18, 1995.
[18] As for the contradictory evidence with respect to work performed on June 19 and 20, I prefer the testimony of Jason and Clinton Prior over that of Mr. Grimwood. I find that there was substantial last minute work required to get the ship ready and that the Priors were asked to work and did perform services on the ship on June 19 and 20.
[19] Although the evidence as to the number of hours worked on June 19 and 20 is unclear, I accept that the Priors worked long hours on both days and are entitled to some compensation. Although the rate of $150 per day is not appropriate as it was only to take effect when the ship was at sea, I would allow an amount of $80 per day for both Jason and Clinton Prior based on the principle of quantum meruit
[20] The parties agree that both Priors were at sea for a period of 41 days and that the pay was to be $150 per day. I would allow their claim for 41 days at $150 per day.
Claim by Stephen Goreham
[21] Stephen Goreham was not retained directly by Mr. Grimwood. He was called by his brother Merle on June 19, 1995 at his home in Nova Scotia and advised that Mr. Grimwood had agreed to hire both brothers and that they would be paid $280 per day while on board the ship.
[22] Mr. Grimwood testified that the agreed rate of pay for Merle and Stephen Goreham was $250 per day while at sea. He suggested that the Gorehams had inflated the amount to $280 per day after they saw a court document issued by Mr. Noack in another proceeding before this Court claiming master"s wages in such an amount against the Defendants.
[23] As I indicated earlier, I found Stephen Goreham to be a very credible witness and I have no reason to disbelieve that he was advised that $280 was the daily rate on June 19, 1995. I prefer the evidence of the Merle and Stephen Goreham and find that Mr. Grimwood had agreed to pay $280 per day for services rendered at sea by both brothers.
[24] Moreover, there is no indication that Mr. Grimwood ever sought to confirm the terms of engagement with Stephen Goreham upon his boarding the vessel. The latter was therefore entitled to rely on the statement made by his brother who was acting on Mr. Grimwood's behalf in securing his attendance from Halifax.
[25] It is not disputed that Stephen Goreham was at sea from June 21, 1995 to July 31, 1995. I would therefore allow the wage claim of Stephen Goreham for 41 days at $280 per day for a total of $11,480. At the hearing, he advanced a further claim for work performed for one day in preparation for the trip. I see no basis for granting relief beyond that claimed in paragraph 6 of the Statement of Claim and therefore reject the additional claim.
[26] There is no dispute that the Defendants agreed to reimburse Stephen Goreham for the cost of airfare from Halifax to Vancouver upon production of an invoice. A copy of an airline ticket for a one-way trip from Halifax to Vancouver in the amount of $1,148.11 was tendered at trial. I would therefore allow the claim for $1,148.11
Claim by Merle Goreham
[27] As I indicated earlier, Merle Goreham came across as an honest witness however his testimony was somewhat frail. Ultimately, he had to prove his claim on a balance of probabilities.
[28] Merle Goreham testified that on June 17, 1995 he reached an oral agreement with Mr. Grimwood to perform services "just as a master of a ship" and that he would be paid the same as the previous master - $280 per day. As indicated earlier, I find that $280 per day was the amount discussed with Mr. Grimwood on June 17, 1995. This was corroborated by Stephen Goreham who spoke to Merle Goreham on June 19, 1995. Moreover, the Defendants do not dispute that an earlier agreement with Mr. Noack was for $280 per day. No explanation was provided by the Defendants as to why the daily rate for a master would vary from trip to trip.
[29] Merle Goreham testified that he worked on the vessel prior to its departure. However, based on the evidence before me, I unable to conclude that there was any agreement that he would be paid for such services. In fact, the Statement of Claim indicates that the wage claim relates to the period from June 21 to July 31. I would therefore disallow any claim for wages prior to June 21, 1995.
[30] I would allow Merle Goreham"s claim for 41 days at $280 per day for a total of $11,480.
[31] I reject the claim by the Merle and Stephen Goreham for standby pay following the completion of the trip. I find that there was no agreement with the Defendants for any form of stand-by pay subsequent to July 31, 1995.
[32] I also reject the claim for any subsequent period claimed by Merle Goreham. Based on the evidence before me, his arrangement with Mr. Grimwood in 1996 was an informal one. It appears that Merle Goreham received compensation for work performed by way of cash advances and free accommodations. The evidence of Merle Goreham was, at best, wanting with respect to the circumstances of his claim for services provided in 1996. He didn"t even recall receiving a number of advances which Mr. Grimwood demonstrated were provided during this period.
Advances paid to the Plaintiffs
[33]
The Defendants have sought to set-off a number of deductions from the wages owed to the Plaintiffs. There was conflicting evidence with respect to advances paid by the Defendants to the Priors and the Gorehams during the relevant period. The Defendants had the burden of establishing on a balance of probabilities that advances had in fact been paid. In the absence of documentary evidence, I preferred the testimony of the alleged recipients over that of the alleged payor.
[34] Jason Prior testified that he only received $1,600 from the Defendants in early June 1995. However, in paragraph 7 of the Statement of Claim, he also admits having received an additional $2,000 in seamen's wages. Mr. Grimwood testified that the payments made to Jason Prior totalled $4,570. I find that Jason Prior was paid $3,600 in advances which may properly be deducted from his wage claim.
[35] Clinton Prior acknowledged receipt of an advance of $1,600 and a further $300 payment from the Defendants. I find that $1,900 was paid to Clinton Prior in advances which should be deducted from his total claim.
[36] At page 3 of his affidavit, Mr. Grimwood states that various advances were made to Merle Goreham. Reference is made to an advance of $300 on July 31, 1995. I find that the amount paid was not on account of wages but rather to reimburse expenses incurred by Merle Goreham on behalf of the Defendants.
[37] Another advance of $600 was allegedly made by the Defendants to Merle Goreham on August 15, 1995. The Defendants assert that this amount was paid on account of wages for the recent trip. I find that Merle Goreham did in fact receive $600, however not for services provided at sea but in payment for work performed after the ship returned to Vancouver.
Deduction for board
[38] The Defendants deducted from the Plaintiffs"wages a daily allowance of $10 for bridge personnel (the Gorehams) and $12 for other crew members (the Priors) for miscellaneous expenses such as food, clean-up supplies, towels and laundry facilities. The Plaintiff Merle Goreham testified that Mr. Grimwood had agreed that the wages were to be clear of any deductions. This was also his brother Stephen"s understanding.
[39] Merle Goreham insisted that he did not agree to a deduction for food. This was corroborated by Jason Prior who maintained that there was no agreement, verbal or otherwise, that he would pay for food. The Defendant Mark Grimwood asserted that the crew is responsible to contribute towards the cost of food according to industry standards. He therefore assessed a per diem rate of $10 for bridge crew and $12 for deck crew.
[40] It appears from the evidence that deductions from wages were never discussed or communicated to the Plaintiffs until after the trip was completed (except for the costs of fishing licences for the Priors). I reject Mr. Grimwood"s contention that the Plaintiffs had approved them. The self-serving accounting prepared by Mr. Grimwood after completion of the trip was not accepted by the Plaintiffs. In fact, they were in no position to argue and were resigned to accepting any reasonable offer from the Defendants. I find that the Defendants"per diem deduction was made unilaterally and without the concurrence of the Plaintiffs. Further, I find that there was an agreement between the parties that the wages would be clear of any deductions, other than statutory. Consequently, I reject the Defendants"set-off for board expenses.
Deduction for cost of fishing licences
[41] Neither Jason or Clinton Prior take issue with respect to a deduction of $122 each for the cost of an Alaskan fishing licence. Consequently, a deduction of this amount from their wages is allowed. Merle and Stephen Goreham deny having agreed to purchase or reimburse the Defendants for their licence. The Defendants have failed to establish the right to set-off the cost of the fishing licences from the wages of the Gorehams. I would disallow this deduction.
Deduction for room and board - Clinton Prior
[42] The Defendants allege that Clinton Prior agreed to pay for accommodations on the ship for the period from August 15 to October 17, 1995. Mr. Grimwood testified that he had an agreement with Clinton Prior whereby he would pay $12 per day. This was denied by Clinton Prior. In his view, he had arranged to reside on the ship on an informal basis at no cost.
[43] First, I am not satisfied that this deduction is a proper set-off from seaman"s wages. Secondly, the Defendants have failed to establish to my satisfaction that an agreement to pay rent was reached. It seems odd that Clinton Prior was allowed to remain on the ship for two months without any written agreement being signed or payment requested. In my view, Clinton Prior was given permission to come and go from the ship as he pleased on an informal basis.
[44] Mr. Grimwood also deducted the amount of $738.31 following the disappearance of a Fitzwright Survival Suit from the ship. This deduction is completely without merit and is disallowed.I find that Mr. Grimwood unilaterally and improperly imposed these charges after the fact to whittle down the outstanding claim for wages.
Deduction for cellular telephone charges
[45] The Defendants seek to deduct an amount for cellular telephone charges incurred by the Priors while at sea. This set-off claim is somewhat problematic. On the one hand, the Priors do not deny having used the cellular phone owned by Defendants or even dispute the charges attributed to them.
[46] The cellular telephone bills produced by Mr. Grimwood reveal that the Priors did use the telephone for a significant number of hours. However, I cannot ignore the fact that the Priors were trapped on the vessel and were at sea for a lengthier period of time than anticipated. It would have been incumbent on the Defendants to place some restrictions on the use of the telephone and to warn the users of the costs before claiming reimbursement. Consequently I would disallow any set-off for telephone charges.
Conclusions
[47] The Plaintiffs have failed to establish that the Defendant Mark Grimwood should be personally liable for the actions of Cloverleaf. There is insufficient evidence to lift the corporate veil. I would therefore dismiss the action as against the Defendant Mark Grimwood personally.
[48] I have taken into account Section 212(4) of the Canadian Shipping Act. The evidence suggests that Mr. Merle Goreham was not the sole master of the ship and was sharing the duties with a number of other individuals, including his brother Stephen. Consequently, I am not inclined to grant any damages for delay in paying masters' wages.
[49] I have reviewed the written submissions of the parties regarding costs, disbursements and interest. The Plaintiffs have put forward a bill of costs setting out counsel fees and disbursements based on Column III of Tariff B. In my view, a lump sum would be more appropriate in the circumstances.
[50] The two actions were not particularly complex and involved relatively small amounts. There were savings from the fact that the Plaintiffs were represented by the same solicitor. Moreover, the parties cooperated in agreeing to a consolidation of the proceedings for hearing and allowing the Priors to testify by telephone.
[51] Although the proceedings were unnecessarily lengthened by the failure of the Plaintiffs to focus their evidence on the relevant issues, the impact on costs was minimal. The Plaintiffs" claims were not exaggerated and they were largely successful at trial. Based on the written offers of settlement, I would allow counsel fees roughly based on the Plaintiffs" proposed bill of costs in the lump sum of $25,000 and disbursements of $3,500, inclusive of tax.
[52] In summary, the Plaintiffs"claims are allowed as follows.
[53] Jason Prior is entitled to the following wages:
(a) the sum of $2,565 for the period from June 1, 1995 to June 16, 1995;
(b) the sum of $160 for the period from June 19 and 20, 1995;
(c) the sum of $6,150 for the period from June 21 to July 31, 1995
for a total of $8,875. Allowed deductions are $3,600 for advances and $122 for the Alaskan fishing licence. The balance owing to Jason Prior is $5,153.
[54] Clinton Prior is entitled to the same amount of wages as his brother Jason. Allowed deductions are $1,900 for advances and $122 for the Alaskan fishing licence. The balance owing to Clinton Prior is $6,853.
[55] The wages owing to Stephen Goreham are $11,480. He is further entitled to the amount of $1,148.11 in reimbursement of the airline ticket for a one-way trip from Halifax to Vancouver. I would allow the total claim of Stephen Goreham in the amount of $12,628.11.
[56] The total wages owing to Merle Goreham are $11,480.
[57] The claims allowed above shall be paid by Cloverleaf Shipping Ltd. to the Plaintiffs forthwith, together with pre-judgment interest of $13,248.63 and costs of $28,500.
"Roger R. Lafrenière"
Prothonotary
Vancouver, British Columbia
July 18, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: JASON PRIOR AND CLINTON PRIOR |
-and-
| THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "TALAPUS", THE SHIP "TALAPUS", |
| MARK GRIMWOOD and CLOVERLEAF SHIPPING LTD., |
| DATE OF HEARING: MAY 3, 4, 5, 8 AND 9, 2000 |
| PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA |
REASONS FOR
| JUDGMENT BY: LAFRENIÈRE P. |
| DATED: TUESDAY, JULY 18, 2000 |
| Mr. Jeffrey J. Smith For the Plaintiffs |
| Mr. Mark Grimwood For the Defendant, on his own behalf and for the other Defendants |
Bromley Chapelski
| Vancouver, BC For the Plaintiffs |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: STEPHEN GOREHAM AND MERLE GOREHAM |
| THE OWNERS AND ALL OTHERS INTERESTED IN |
THE SHIP "TALAPUS", THE SHIP "TALAPUS",
| MARK GRIMWOOD and CLOVERLEAF SHIPPING LTD., |
| DATE OF HEARING: MAY 3, 4, 5, 8 AND 9, 2000 |
| PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA |
REASONS FOR
| JUDGMENT BY: LAFRENIÈRE P. |
| DATED: TUESDAY, JULY 18, 2000 |
| Mr. Jeffrey J. Smith For the Plaintiffs |
| Mr. Mark Grimwood For the Defendant, on his own behalf and for the other Defendants |
Bromley, Chapelski
| Vancouver, BC For the Plaintiffs |
Date: 20000718
Docket: T-595-96
BETWEEN:
| JASON PRIOR AND CLINTON PRIOR |
Plaintiffs
| THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "TALAPUS", THE SHIP "TALAPUS", |
| MARK GRIMWOOD and CLOVERLEAF SHIPPING LTD., |
Defendants
Docket: T-2204-96
BETWEEN:
STEPHEN GOREHAM AND MERLE GOREHAM
Plaintiffs
-and-
| THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "TALAPUS", THE SHIP "TALAPUS", |
| MARK GRIMWOOD and CLOVERLEAF SHIPPING LTD., |
Defendants
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