Island Tug And Barge Ltd. v. 99 Haedong Star (The), 2002 FCT 250

Date: 20020305

Docket: T-1441-01

Neutral Citation: 2002 FCT 250

ADMIRALTY ACTION IN REM AND IN PERSONAM

BETWEEN:

                                                       ISLAND TUG & BARGE LTD.

                                                                                                                                                          Plaintiff

                                                                                 and

                                                               HAEDONG CO. LTD.,

DAITO LINE CO. LTD.,

and THE OWNERS AND ALL OTHERS

INTERESTED IN THE SHIP "99 HAEDONG STAR",

also described as the "HAEDONG STAR NO. 99"

                                                                                                                                                    Defendants

                                                 AMENDED REASONS FOR ORDER

Hargrave P.

[1]         The Plaintiff is the owner of the "ITB Provider", a newly built barge which was damaged while on her delivery voyage in tow of the tug "99 Haedong Star"near Nakhodka, Russia. The Plaintiff, having in August of 2001 effected both in rem and in personam service, the former in the usual manner and the latter by acknowledged service upon the then counsel for the Defendants, now moves for judgment in default of defence. While a copy of this motion for judgment in default of defence was delivered to the solicitor for Daito Line Co. Ltd. and Haedong Co. Ltd. before an Order was issued, 27 February 2002, removing him as counsel of record, that delivery does not, in the circumstances, constitute service. However, our Rules do not require service of a motion for judgment in default of defence.

[2]         A motion for judgment in default of defence is provided for under Rule 210(1), such default judgment being limited to what is set out in the statement of claim: Tag Heuer S.A. v. John Doe (2000) 4 C.P.R. (4th) 177 at 179. Here the claim for damage set out in the Statement of Claim includes the cost of transporting the barge, by semi-submersible vessel, from Nakhodka, Russia to Shanghai, China, for repairs; structural damage to the hull of the barge; the cost of towing the barge from Shanghai, China to Vancouver, British Columbia; loss of use of the barge for the time taken for repairs and for a portion of the delivery voyage from Shanghai to Vancouver; and interest. These are items of damage for which the Plaintiff seeks judgment in default of defence.

[3]         Default judgment is discretionary: see for example Muller v. Canada [1989] 2 F.C. 303 at 308, a decision of Mr. Justice Strayer, as he then was. Here I can discern no reason why judgment in default of defence ought not to be granted, subject to part of the default proceeding being in rem.

[4]         In rem claims may, in some instances, require a reference to assess damages. However I may also give default judgment without a reference so long as I am satisfied that the applicant's claim is well-founded. This is a limitation which, while set out in English Order 75, Rule 21(7), does not appear in our Rules. However I believe that the provision in Order 75, Rule 21(7), allowing the court, if satisfied that an applicant's claim is well-founded, to give default judgment for the claim, with or without a reference, is a codification of long established practice and here I would refer to "The Polymede" (1876) 1 P.D. 121 at 122 and to "The Sfactoria"(1876) 2 P.D. 3 at 4, both decisions of Sir Robert Phillimore.

[5]         In the present instance I have considered the affidavit of Robert Shields, president of the Plaintiff, Island Tug & Barge Ltd., sworn in a companion proceeding, McAsphalt Marine Transportation Ltd., T-1464-01, on 14 January 2002, it appearing that Island Tug & Barge Ltd. was, in that proceeding, either a claimant or a caveator. The present Island Tug & Barge Ltd. is a part of a long established and well regarded west coast marine towing enterprise. That affidavit sets out, in a straightforward way, a claim for damages in the amount of $1,764,894.19 (Canadian). I note, among other things, that the affidavit provides an allowance for the original budgeted cost of delivery of the barge by the "99 Haedong Star", to give a net cost of delivery. All the circumstances considered I accept the figures in that affidavit and am satisfied that the claim of Island Tug & Barge Ltd. is well-founded.

[6]         Judgment in default of defence, in the amount of $1,764,894.19 granted to Island Tug & Barge Ltd. as against Haedong Co. Ltd., Daito Line Co. Ltd. and the ship "99 Haedong Star", also called "Haedong Star No. 99". Costs to the Plaintiff as may be taxed.

(Sgd.) "John A. Hargrave"

                                                                                                                     Prothonotary

Vancouver, British Columbia

5th March 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-1441-01

STYLE OF CAUSE:                           Island Tug & Barge Ltd. v. The Ship "99 Haedong Star" et al.

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       March 4, 2002

REASONS FOR ORDER:              HARGRAVE P.

DATED:                                                March 5, 2002

APPEARANCES:

Mr. David McEwen                                                                                                             FOR PLAINTIFF

SOLICITORS OF RECORD:

McEwen, Schmitt & Co.                                                                                                     FOR PLAINTIFF

Vancouver, British Columbia