Date:
20070719
Docket:
T-2033-06
Citation:
2007 FC 757
[ENGLISH TRANSLATION]
ADMIRALTY ACTION
IN REM
BETWEEN:
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
Plaintiff
and
CARAPEC
NO. 1
Defendant
REASONS FOR ORDER
PROTHONOTARY
MORNEAU
[1]
This is a
motion by the plaintiff under Rules 298 and 490 et seq. of the Federal
Courts Rules (the Rules) to have this Court order authorizing the sale of
the vessel “Carapec No. 1” (the Vessel) to a bidder, accepted by the plaintiff
following a bidding process, with the stated goal of dismantling the Vessel so
that the Port of Matane is rid of it.
Essential
background
[2]
It appears
that the Vessel has been moored at the Port of Matane since January 4, 2001,
i.e. for more than six (6) years, with no crew aboard.
[3]
Since the
Vessel has been moored at the Port of Matane, its owners have never paid the
mooring charges owed, and apparently owe the plaintiff more than $40,000 for
that purpose.
[4]
Furthermore,
Transport Canada authorities have ordered the representatives and owners of the
Vessel to move it outside the Port of Matane on several occasions. This removal
never took place.
[5]
The Vessel
has been seized since November 21, 2006, without any security for its release
having been posted with this Court.
[6]
In her
motion, the plaintiff argues that the Vessel constitutes a nuisance and risk to
the environment and marine safety in the Port of Matane. According to the plaintiff,
since the Vessel has not been maintained for many years, its condition is
deteriorating quickly, raising fears that an incident involving it will occur.
[7]
Moreover, it
appears that, despite the many undertakings by the representatives and
individuals who are apparently responsible for the Vessel to move it outside
the Port of Matane, the Vessel is still, as mentioned above, moored at the Port
of Matane as of the date hereof.
[8]
According to
an assessment of the Vessel’s market value, which was conducted on behalf of
the plaintiff by Mr. Richard Breton, marine expert, on August 21, 2006 (the
Breton report), the Vessel has a market value of $0.
[9]
The defendant
challenges this motion by the plaintiff, highlighting that it does not
acknowledge owing mooring fees to the plaintiff, and that it is false to
consider the plaintiff’s claims regarding the various risks posed by the Vessel
to be founded, as it has been moored at the Port of Matane for over six (6)
years and nothing has happened. Furthermore, it filed part of an assessment
conducted in November 2003 by a naval architect, who assessed the hull of the
Vessel to be worth around $400,000.
[10]
The defendant
also points out, through Mr. Gaston Langlais, who appears as the authorized
representative of the Vessel’s owner, the company Figaro Transport Inc., that
it is currently seeking funding to convert the Vessel into a ferry and that, in
addition, it was just recently in talks with a potential buyer, where a sum of
$100,000 was discussed.
[11]
Finally, Mr.
Langlais indicates to the Court that he has already undertaken to rid the
Matane wharf of the Vessel by September 30, 2007. Thus, even if the Court
decided to allow this motion by the plaintiff, the Vessel would have already
left the Port of Matane wharf before the conclusions sought could be enforced.
Analysis
[12]
There are no
doubts that this Court has jurisdiction over all aspects of the case and that
it can, under Rule 490(1)(a) and this Court’s case law, order the private sale
of a vessel, even though the main dispute is not finished.
[13]
Here, I do
not believe that it is the plaintiff’s likely well-founded right to her past
mooring fees that would lead us to side with the plaintiff. The removal and
dismantling operation that she proposes will bring it nothing in terms of
money, but rather cost her a certain amount of money. However, removing the
Vessel would put an end to the growing invoice for those Vessel fees and
maintenance charges that she appears to have incurred in the past.
[14]
As for the
risk to the environment, strictly speaking, I do not believe that the Breton
report or Mr. Bélanger’s affidavit, which was submitted by the plaintiff in
support of her motion, establish a short- or medium-term risk that an
environmental incident will occur due to the Vessel’s presence. Although each
passing week adds to the time that the Vessel is left to deteriorate, there
does not appear to be an imminent risk under this strict aspect.
[15]
However, it
appears that the defendant, Mr. Langlais, was called upon by the authorities in
question on at least two previous occasions to move the Vessel outside the
port. The defendant never complied, despite Mr. Langlais’ undertaking in that
regard.
[16]
In his
affidavit dated May 28, 2007, Mr. Bélanger indicates, inter alia, that on
November 3, 2005, he ordered Mr. Langlais, under the statutory powers available
to him, to move the Vessel outside the Port of Matane. At paragraphs 12 to 15
of his affidavit, he indicates that he ordered this measure due to the
following context:
[translation]
12. I
deemed then that the vessel Carapec No. 1 presented a risk to the
Matane port facilities and presented a risk to marine safety due to its lamentable
condition;
13. Through
that same order, I also informed Mr. Gaston Langlais that unless he complied
with that order, actions would be taken to rectify the situation at the expense
of the owner and anyone responsible for the vessel;
14. Following
a meeting between Mr. Gaston Langlais and myself, Mr. Langlais undertook to
take the necessary measures to secure the vessel for the winter of 2005-2006
and to move it outside the Port of Matane no later than June 1, 2006, all
as it appears from a copy of a letter by Mr. Gaston Langlais dated November 5,
2005, which is enclosed with my affidavit as Exhibit “D”;
15. However,
despite this undertaking, the vessel Carapec No. 1 is still moored at
the Port of Matane as of the date hereof;
(Emphasis added)
[17]
This order
was never challenged in judicial review. Its appropriateness, reasonableness,
and validity have therefore been in place since it was issued. We must
therefore hold that this perception by the plaintiff regarding the risks
associated with port facilities and marine safety are in fact still present,
that they are of some importance, and that the defendant paid absolutely no
heed to them, given, on the one hand, the time that has passed since the order
to move in November 2005 and, on the other hand, the non-compliance with the
undertaking to move the Vessel. In this regard, we cannot give any weight to
the defendant’s new undertaking to move the Vessel by September 30, 2007.
Likewise, the sales or funding steps raised by the defendant are far too vague
and recent for the Court to be able to accept them to avoid moving the Vessel.
[18]
Finally, with
respect to the Vessel’s current value, the defendant’s partial filing of a
study dating to 2003 for special purposes cannot prevail over the filing and
contents of the Breton report. Thus, this Court accepts the latter report with
respect to the Vessel’s complete lack of market value and the sales process of
the Vessel proposed by the plaintiff.
[19]
In sum, the
mooring and maintenance fees that will still be incurred if nothing is done
with the Vessel, the established risk that the Vessel poses to the port
facilities and marine safety, and the fact that the Vessel is not maintained
are all good reasons to authorize the sale of the Vessel at this time. (See, inter
alia, Brotchie v. Ship Karey T (1994), 83 F.T.R. 262 and Canada
v. Horizons Unbound Rehabilitation & Training Society) (1996),
125 F.T.R. 81). Moreover, the Vessel’s lack of market value fully justifies the
process suggested by the plaintiff.
[20]
Accordingly,
this motion by the plaintiff will be allowed, with costs, and the Court will
give way in the order accompanying these reasons to the conclusions sought by
the plaintiff.
“Richard
Morneau”
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