Reano v. Jennie W ( The )
A-362-97
Stone J.A.
11/12/97
20 pp.
Appeal from Trial Division Order ([1997] F.C.J. No. 595 (QL) denying appellant's motion under R. 439(3) to set aside default judgment in favour of respondents-Judgment awarding amounts for "wages and expenses", "wages, expenses and repatriation expenses" and for "security and expenses" in aggregate amount of $192,882.72-Respondents declared entitled to maritime lien, ship ordered to be sold to satisfy judgment-In December 1995, respondents arrived at St. John's, Newfoundland to take up positions as master and crew of Jennie W-Last five respondents entering into employment contracts at Lima, Peru-Contracts for period of two months from date of signing-By end of May 1996, respondents received no remuneration for period from March 8, 1996 onward-"Pay offering" made by owners-Action in rem commenced at St. John's with filing of statement of claim-Claims in action for amounts well in excess of pay offering-No defence filed on October 23, 1996-Respondents moving ex parte for default judgment under RR. 432, 437-Default judgment granted on November 26, 1996-Form 4 playing important roles in action in rem-Statement of claim seriously defective by omission of Form 4 indorsement at time it was served-Requirement citation be issued, served in action in rem long standing in Canadian admiralty practice-Absence of Form 4 indorsement not rendering action nullity, arrest invalid-Owners, all others interested in ship given notice to which entitled under Rules of Court-Order attacked made in exercise of discretion-Court not warranted in interfering with discretionary order in absence of error of law-Respondents entitled to move on October 23, 1996 for default judgment-Appellant unreasonably delayed filing motion to set aside default judgment on March 27, 1997-Respondents entitled to maritime liens for unpaid wages, expenses-None of claims consisted of "liquidated demand" at common law-Claims for wages well in excess of owners' "pay offering"-Claims for leave pay, overtime, subsistence, termination, future claims for basic wages, leave pay, overtime and subsistence not liquidated demands-Claims for "unliquidated damages" like wage claims-Only fair way of ascertaining amounts truly owing by way of reference under RR. 433(2), 500-Default judgment should not be set aside-Failure to assess claims for unliquidated damages by varying judgment under R. 439(3) error of law justifying Court's interference with judgment below-Appeal allowed-Federal Court Rules, C.R.C., c. 663, RR. 432, 433, 437, 439, 500.