Greely v. Tami Joan ( The )
T-2778-92
Gibson J.
29/8/97
23 pp.
Plaintiff seeking various reliefs against defendant Her Majesty in Right of New Brunswick-During spring 1992, plaintiff decided to enter groundfish fishery off northeast coast of Newfoundland-Undertook to purchase appropriate vessel-Ship Tami Joan proved to be available for charter, lease-Plaintiff wrongly believed Tami Joan unencumbered, appropriately insured-Tami Joan subject to mortgage substantially in arrears held by Province of New Brunswick-Plaintiff not complying with lending requirement in repayment contract-Plaintiff, captain, and Mr. Lewis not "citizens" of New Brunswick-New Brunswick claiming possession of Tami Joan-Plaintiff refusing to turn over Tami Joan to New Brunswick-Ship taken to St. John's, moored in harbour-Seized by New Brunswick-Subsequently sold by public tender from place of storage in Newfoundland-New Brunswick's defence should not be rejected in entirety for failure to strictly prove mortgage, registration thereof-New Brunswick entitled to seize Tami Joan at St. John's as mortgage then in arrears, insurance on vessel allowed to lapse by plaintiff-Plaintiff not entitled to possession, use of Tami Joan since seizure by New Brunswick-Entitled to possessory lien against Tami Joan by virtue of equipment, supplies, improvements provided by him to ship-Plaintiff "supplier of goods and material" to Tami Joan, thus entitled to possessory lien while in possession of Tami Joan-Left with nothing more than right to be paid amount of lien by New Brunswick when lost possession of Tami Joan by reason of seizure made by New Brunswick in accordance with law-At time action commenced, plaintiff, then being out of possession of Tami Joan, had no basis on which to proceed in rem to enforce possessory lien-In same position as ordinary creditor since he had no maritime lien-Plaintiff's claim for special, general damages respecting loss of use of Tami Joan for period following seizure, until end of lease, that is December 25, 1992, must fail on own merits-Plaintiff not losing opportunity to engage in late season turbot fishery through seizure of Tami Joan-May have statutory right in rem for necessaries, repairs, but right ranking below that of New Brunswick as mortgagee in possession-Action dismissed.