MARITIME LAW |
Contracts |
Atlantic Yacht & Ship Inc. v. Status Quo (The)
T-984-03
2003 FC 965, Hargrave P.
8/8/03
12 pp.
Motion to strike out plaintiff's in rem action against vessel Status Quo--Plaintiff, Atlantic Yacht & Ship Inc., entered into marketing agreement with defendant shipbuilder, Sovereign Yachts (Canada) Inc. whereby Atlantic would provide marketing, brokerage services to Sovereign at commission of 5% of price of vessels for which Atlantic found buyer--In February 2002, Atlantic found Mr. Don Davis of Florida, U.S.A. as buyer for 138-foot yacht to be built by Sovereign, called Status Quo--Sovereign, Atlantic entered into commission agreement for brokerage, form of personal service contract--Sovereign made substantial commission payments to Atlantic, ran into financial difficulties, ceased to pay agreed 5% commission--Thus present action by Atlantic against Sovereign in personam, against Status Quo in rem-- Mr. Davis, as beneficial owner, second mortgagee, finding Status Quo under arrest at suit of broker, Atlantic--Lack of in rem jurisdiction in Federal Court, over res, by which to enforce Atlantic's claim--Court must not distort statutory jurisdiction granted to Federal Court by giving forced, unreasonable reading to sections of Federal Court Act relevant herein--Statement of claim in contract, being marketing, brokerage services contract, separate later contract in form of commission agreement--Federal Court Act, s. 22(2)(a), (n) must be examined in light of Act, s. 43(2) in order to determine possibility of Federal Court jurisdiction--Two relevant concepts here: first, exercise of in rem claim against ship, second, exercise of in rem claim against proceeds of sale paid into Court--No in rem jurisdiction in favour of Atlantic, as personal contractual creditor of Sovereign, may be found in Federal Court Act, s. 22(2)(a)--Nor can Atlantic invoke s. 22(2)(n), as dealing with contractual claims arising out of construction, repair, equipping of ship--Mr. Davis has shown plain, obvious, beyond doubt in rem claim so clearly futile has not slightest chance of succeeding--Action will proceed without in rem aspect--Action in rem against Status Quo dismissed--Vessel released from arrest--Motion granted--Federal Court Act, R.S.C., 1985, c. F-7, ss. 22; 1996, c. 31, s. 82; 2002, c. 8, s. 31), 43 (as am. by S.C. 1990, c. 8, s. 12; 1996, c. 31, s. 83; 2002, c. 8, s. 40).