Doris v. Ferdinand ( The )
T-1416-98
Dubé J.
23/9/98
17 pp.
Motion for summary judgment-Plaintiff Chief Executive Officer of North Channel Nautical Village (NCNV), holding 47% of common shares-NCNV operating 12 high-quality, floating homes (ships), owned by 12 individually numbered companies, wholly-owned subsidiaries of NCNV-Plaintiff claiming master's disbursements lien against ships in amount of $536,640.41 in priority to first mortgages held by Banks-Claims relating to period from May 9, 1994 to October 31, 1997-In 1995 Banks financed acquisition of ships through mortgage loans in amount of $250,000 per ship-Plaintiff de facto sole operating officer of NCNV, owners-Representing to Banks ships free of all prior security interests when negotiating loans-Personally guaranteeing portion of each mortgage-Owners, NCNV bankrupt-Banks appointing Receiver-Receiver holding widely publicized auction, entering into 12 separate agreements of purchase and sale for cumulative sale proceeds of $412,600-Plaintiff obtaining 12 arrest warrants on day sales scheduled to close-Motion allowed-Six requirements for master's disbursements lien: (1) goods or services must be necessaries; (2) goods or services must be for ship (and common venture), not for master's own benefit; (3) master must have disbursed own money; (4) disbursement must be by master, and not benefit seamen, agents, mate; (5) master must have had authority (express or implied) to pledge owner's credit; and (6) master must be unable to communicate with owners-Disbursements including principal, interest on loans obtained on behalf of NCNV, monthly interest charge on personal line of credit used both for family, business expenses, charges to plaintiff's credit cards for which no specific details provided, payments to family members, lease payments on vehicles, corporate solicitor fees, telephone charges, promotional services, automobile repairs, sale commissions-Such expenses not for "goods, materials or services" supplied to ship for "operation and maintenance"-Not "necessaries" related to specific ships-Mainly for operation, administration of company, plaintiff's personal expenses-Disbursements made in capacity as de facto sole operating officer of NCNV, not as master of ship-As plaintiff de facto sole operating officer and sole directing mind of NCNV and/or owners, when reported to owners, reporting to himself-Furthermore, as modern means of communication such that master always in touch with owners, "inability to communicate with owners of ships" missing-Estoppel representation by words or conduct inducing detrimental reliance-Even if had valid master's disbursements lien, claims not having priority over loans because failed to advise Banks of claims in progress at time of loans and continuing thereafter-Defendants arguing whatever lien plaintiff may have would rank behind rights of Banks because personally guaranteed percentage of funds advanced by Banks to each of owners-Plaintiff claiming Banks no longer entitled to rely on personal guarantees because vitiated by improvident realization of ships-No evidence sale unlawful or conducted improperly-Where Court satisfied no genuine issue for trial, must grant summary judgment-Plaintiff putting best foot forward, but unsuccessful.