Viktor Overseas Ltd. v. M.V. Filomena Lembo (The), docket T-2241-97

Date: 19971107

Docket: T-2241-97

     ACTION IN REM AND ACTION IN PERSONAM

     AGAINST THE VESSEL "M.V. FILOMENA LEMBO"

     AND ALL THOSE PERSONS INTERESTED IN HER

BETWEEN:

     VIKTOR OVERSEAS LTD.

     Plaintiff

     - and -

     DEIULEMAR COMPAGNIA DI NAVIGAZIONE S.p.A.,

     MISANO DI NAVIGAZIONE S.p.A. and

     THE VESSEL "M.V. FILOMENA LEMBO"

     AND ALL THOSE PERSONS INTERESTED IN HER

     Defendants

     REASONS FOR ORDER

NADON J.

[1]      The defendant Deiulemar Compagnia Di Navigazione S.p.A. (the "shipowners") seeks an order of this Court quashing the warrant of arrest of their vessel, the "M.V. FILOMENA LEMBO" and its release from arrest.

[2]      The plaintiff, a ship repairer, carried out repairs to the FILOMENA LEMBO in June and July 1996. The plaintiff claims, by its statement of claim filed on October 17, 1997, that the cost of the repairs, a sum of US $ 495,025.00, remains outstanding. In its statement of claim, the plaintiff named as defendants the shipowners and a second defendant Misano Di Navigazione S.p.A..

[3]      On October 17, 1997, the plaintiff filed the affidavit to lead warrant of Gordon Hearn and, on that day, obtained a warrant for the arrest of the FILOMENA LEMBO. The vessel was arrested on October 17, 1997, at the Port of Come by Chance, Newfoundland.

[4]      The defendant shipowners seek an order quashing the arrest of their vessel and its release from arrest. The defendant shipowners" submission is to the effect that, at all relevant times, their vessel was under a bareboat charter to the codefendant Misano Di Navigazione and that, pursuant to that contract, all repairs to the vessel, during the life of the charterparty, were to be for the account of Misano Di Navigazione. In her affidavit filed in support of the motion, Ms. Hutchings, counsel for the defendant shipowners, stated that she had been informed by Vittorio Porzio, one of the Italian solicitors for the defendant shipowners, that the shipowners had never authorized Misano Di Navigazione to contract, on their behalf, for the repair of their vessel.

[5]      This application cannot succeed. First of all, the statement of claim discloses a reasonable cause of action against the shipowners. The plaintiff alleges that Misano Di Navigazione was the manager and charterer of the vessel and that it contracted, on behalf of the defendant shipowners, to have repairs effected upon the FILOMENA LEMBO. This assertion appears to find support in the contract of repairs wherein Misano Di Navigazione, both in the introductory paragraph of the contract of repair, and in signing the contract represents that it is acting on behalf of the shipowners.

[6]      Also of relevance is the fact that the entry in Lloyds Register of Shipping for the year 1995-96, shows Misano Di Navigazione as being the manager of the FILOMENA LEMBO.

[7]      On the evidence presently before me, I am of the view that the shipowners" application to quash the arrest of the FILOMENA LEMBO should not be allowed. Notwithstanding the able arguments of Ms. Hutchings, the shipowners" application shall be dismissed.

[8]      Costs shall be in the cause.

     "MARC NADON"

     Judge

Ottawa, Ontario

November 7, 1997