DP World (Canada) Inc. v. Seacube Container Leasing Ltd., 2017 FC 174

Date: 20170210

Docket: T-2249-16

Citation: 2017 FC 174

Vancouver, British Columbia, February 10, 2017

PRESENT:     The Honourable Mr. Justice Shore

ADMIRALTY ACTION IN REM

AGAINST THE CONTAINERS LISTED IN APPENDIX “A”

AND IN PERSONAM

BETWEEN:

DP WORLD (CANADA) INC.

Plaintiff

and

The CONTAINERS LISTED IN APPENDIX “A” and the Owners and all Others Interested in the CONTAINERS LISTED IN APPENDIX “A”, SEACUBE CONTAINER LEASING LTD., DONG FANG INTERNATIONAL ASSET MANAGEMENT LTD., FLORENS ASSET MANAGEMENT COMPANY LIMITED,

SEACO KOREA LTD.

TEXTAINER GROUP HOLDINGS LIMITED,

THE KOREAN DEVELOPMENT BANK

and JOHN DOE LTD.

Defendants

ORDER

UPON MOTION dated January 4, 2017, on behalf of the Plaintiff, for, inter alia, an Order:

1.      Pursuant to Rule 490(1)(a) of the Federal Courts Rules that the Defendant Containers be sold without appraisal by private contract and as more particularly described as follows before judgment is granted:

(a)    The Defendant Containers shall be sold by conduct of DP World without advertising, with all existing faults, without any allowance for deficiencies or errors of description whatsoever and without any legal or contractual representations or warranties whatsoever, but free and clear of all liens and encumbrances under Canadian Maritime Law;

(b)   Any sale of the Defendant Containers shall not require advance Court approval, but DP World may seek Court approval if it chooses to do so;

(c)    In the event of a sale, DP World be hereby authorized to sign a bill of sale transferring ownership and title of the Defendant Containers to the purchaser free and clear of any liens and encumbrances;

(d)   Possession, risk and title to the Defendant Containers shall pass to the purchaser on delivery by DP World of a signed bill of sale to the purchaser or as otherwise agreed between DP World and the purchaser;

(e)    The following shall be deemed to be expenses of sale, and shall rank first in priority from the proceeds of sale of the Defendant Containers over all other claims:

                                                                     i.            amounts expended or incurred by DP World that pertain directly to the Defendant Containers, including but not limited to any amounts expended or incurred by DP World for storage fees and any other maintenance fees; and,

                                                                   ii.            all reasonable expenses of advertisement of the sale, costs, disbursement and other expenses necessary or inherent to giving effect to this Order;

(f)     Proceeds of the Sale shall be directed to be paid to DP World to cover the cost of recovering sums due from the Defendants and for storage fees and related charges for the Defendant Containers.

AND UPON the Motion in respect of the Defendant Containers owned by Dong Fang International Asset Management Ltd, Florens Asset Management Company Limited, Textainer Group Holdings Limited, The Korean Development Bank and John Doe Ltd. being granted on Tuesday, February 7, 2017;

AND UPON reading the motion record filed on behalf of the Plaintiff and upon the consent of counsel for the Plaintiff and counsel for Seacube Container Leasing Ltd., Seaco Korea Ltd. and Seaco Global (UK) Ltd. as owners of the Defendant Containers listed in Schedule 1 hereto;

THIS COURT ORDERS that:

1.      The Defendant Containers owned by Seacube Container Leasing Ltd., Seaco Korea Ltd. and Seaco Global (UK) Ltd. currently located at the Terminal operated by the Plaintiff in the Port of Vancouver as listed in Schedule “1” hereto shall be sold by DP World without advertising, with all existing faults, without any allowance for deficiencies or errors of description whatsoever and without any legal or contractual representations or warranties whatsoever, but free and clear of all liens and encumbrances under Canadian Maritime Law;

2.      DP World is hereby authorized to sign a bill of sale transferring ownership and title of the Defendant Containers listed in Schedule “1” to the purchaser free and clear of any liens and encumbrances;

3.      Possession, risk and title to the Defendant Containers listed in Schedule “1” shall pass to the purchaser on delivery by DP World of a signed bill of sale to the purchaser or as otherwise agreed between DP World and the purchaser;

4.      The following shall be deemed to be expenses of sale, and shall rank first in priority from the proceeds of sale of the Defendant Containers listed in Schedule “1” over all other claims:

(a)    amounts expended or incurred by DP World that pertain directly to the Defendant Containers, including but not limited to any amounts expended or incurred by DP World for storage fees and any other maintenance fees; and,

(b)   all reasonable expenses of advertisement of the sale, costs, disbursement and other expenses necessary or inherent to giving effect to this Order;

5.      The proceeds of the sale of the Defendant Containers listed in Schedule “1” shall initially be paid to “Bernard LLP, In Trust” and Bernard LLP shall thereafter distribute the proceeds of sale in accordance with a joint direction by DP World, Seacube Container Leasing Ltd., Seaco Korea Ltd. and Seaco Global (UK) Ltd. or, failing agreement by those parties, in accordance with a further order of this court.

“Michel M.J. Shore”

Schedule 1: