249387 B.C. Ltd. v. Edith Cavell (The), 2002 FCT 798

Date: 20020717

Docket: T-839-02

Neutral citation: 2002 FCT 798

ADMIRALTY ACTION IN REM

AGAINST THE SHIP "EDITH CAVELL" AND IN PERSONAM

BETWEEN:

                                                                 249387 B.C. LTD.

                                            dba BLUE PACIFIC YACHT CHARTERS

                                                                                                                                                         Plaintiff

                                                                                 and

                                                 THE OWNERS AND ALL OTHERS

                                     INTERESTED IN THE SHIP "EDITH CAVELL",

                                                        THE SHIP "EDITH CAVELL"

                                                and RICARDO VICTOR STEPHENS

                                                                                                                                               Defendants

                                                            REASONS FOR ORDER

HARGRAVE P.

        These brief reasons arise out of an application for in rem judgment in default of defence against the "Edith Cavell" (the "Ship"). Being satisfied that proper in rem service has been effected, judgement in rem is granted against the Ship. However, the balance of the motion, to set the amount of the judgment, claimed at $14,998.21 and costs is adjourned.

        From time to time in the past I have granted default judgment, for a specified sum, on the basis of a statement of claim, setting out the amount claimed, properly served. I reasoned that it was up to a properly alerted defendant to then protect his or her position, or in the case of a vessel, to protect the vessel, if there was either an arguable defence or an error in the amount claimed. In an in rem application for default judgment my approach ran counter to the English procedure, which did require affidavit evidence and exhibits in order to establish the amount of the default judgment in rem. However the English rule 21(7) specifically required the court to be satisfied that the claim was well-founded, a provision which the courts there had interpreted to mean an application supported by affidavits and exhibits, including invoices and the like. Our rules did not contain the same provision, but merely referred to the fact that the motion might be ex parte and be supported by affidavit evidence.

        As to my former practice I would also refer to Fisheries Loan Board (N.S.) v. Harlow (1986), 5 F.T.R. 251, a decision of the Associate Senior Prothonotary Giles, observed that, under the previous default judgment rule, rule 432, an affidavit explaining and setting out the amount of the claim, in effect exhibiting the account establishing the amount of the judgment, was not always required. Thus, where a statement of claim clearly set out the amount sought and the defendant had ample opportunity to challenge the statement of claim I would grant default judgment on that basis.

        More recently, Mr Justice Hugessen in The Chase Manhattan Corporation v. 3133559 Canada Inc., an unreported 15 August 2001 decision in docket T-1754-96, 2001

FCT 895, pointed to the error in this approach. He began with the proposition that by Federal Court rule 184, allegations which are not admitted are deemed to be denied. Thus, the allegations which are set out in the statement of claim remain allegations, without evidence of their truth or correctness, absent the filing of an affidavit. Judgment cannot, therefore, be obtained simply on the basis of the statement of claim.

        Mr Justice Hugessen observed that on a motion for default there were two questions before the Court. First, whether the defendant was in default; and second, whether there was evidence to support a claim of the plaintiff. In the Chase Manhattan Corporation situation, Mr Justice Hugessen adjourned the motion, advising that he was prepared to accept one or more affidavits setting forth whatever evidence the plaintiff wished to urge in support of its claim.

        In the present instance, I have granted judgment in rem in default of defence, adjourning determination of the amount, pending filing of affidavit evidence, with copies of affidavits to be mailed, as a courtesy, to the in personam defendant.

(Sgd.) "John A. Hargrave"

                                                                                               Prothonotary

Vancouver, British Columbia

17 July 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-839-02

STYLE OF CAUSE:                        249387 B.C. Ltd. v. The Owners and All Others Interested in the Ship "Edith Cavell" et al.

PLACE OF HEARING:                  Motion in writing

DATE OF HEARING:                     -

REASONS FOR [ORDER or JUDGMENT] : Hargrave P.

DATED:                                              17 July 2002

APPEARANCES:

-                                                              FOR PLAINTIFF

-                                                              FOR DEFENDANTS

SOLICITORS OF RECORD:

Bromley Chapelski                           FOR PLAINTIFF

Barristers & Solicitors

Vancouver, British Columbia

Ricardo Victor Stevens                     FOR DEFENDANTS