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Vrac Mar Inc. (Suppliant)
v.
Demetries Karamanlis et al. and The Ship Nors- land (Respondents)
Trial Division, Noël A.C.J.—Montreal, April 10; Ottawa, April 14, 1972.
Maritime law—Order for sale of ship free of encum- brances—Arrears of taxes owing country of registration— Payment required to obtain Canadian registration—Subro- gation—Caveat against distribution of sale proceeds.
The Norsland, registered in Panama, was sold for $111,- 000 pursuant to an order of this Court for her sale free of encumbrances. Subsequently the purchaser was obliged to pay $3,943 to the Republic of Panama for arrears of taxes owing that country in order to obtain Canadian registration. In addition the purchaser incurred legal expenses in connec tion with the change of registration.
Held, on an interlocutory motion, the purchaser was entitled to be subrogated to Panama's rights in respect of the $3,943 paid that country and allowed to file a caveat against distribution of the proceeds in court with respect to such sum and the amount of the legal expenses pending final determination by this Court.
MOTION.
Richard Gaudreau for Vrac Mar Inc.
Edouard Baudry for Demetries Karamanlis et al.
David F. H. Marler for First Pennsylvania Banking & Trust Co.
Peter R. D. MacKell, Q.C. for Fried Krupp G.m.b.H. and Strider Maritime Co. Ltd.
NOEL A.C.J.—In its amended motion Vrac Mar Inc., the successful bidder for the ship M/V Fort George (Ex M/V Norsland) in a court sale dated September 15, 1971, under an order made by this Court on August 18, 1971, extend ed by a further order on September 13, 1971, asks that an order be made to
(a) allow subrogation of rights in its favour for the sum of $3,943.95;
(b) allow filing of the caveat attached to its motion;
(c) order that the amount of $7,318.47 be given priority of payment with interest from the proceeds of sale of the Norsland;
(d) order that the costs of this motion be paid from the proceeds of sale of the Norsland.
The order for sale made by this Court on August 18, 1971 provided that sale of the ship Norsland should be as follows:
That the basis of the sale of the ship Norsland shall be as is, where is, as she now lies afloat at Longue Pointe, particulars not guaranteed, free and clear of all liens, charges, mortgages, encumbrances and claims and with a clean bill of sale.
Suppliant contends that when it paid a price of $111,000 for the ship, it was guaranteed that it would receive ownership of the latter and the said• ship would be free of any encumbrance or maritime or other lien. It states, however, that unfortunately the said ship was not free of any encumbrance, since in order to have the ship registered with the Canadian Ministry of Trans port, it had to carry out certain formalities called "Proof surrender Panama documenta tion" and furnish proof that the Norsland's register was closed. In the submission of suppli ant the Government of Panama held an alleged maritime lien on the said ship for arrears of certain taxes incurred in 1969, 1970 and 1971, and refused to close the Norsland's register as long as these sums were unpaid.
Suppliant stated that it was accordingly obliged to incur considerable expense and pay certain sums of money in order to have the ship registered in Canada, as follows:
(a) paid to the Republic of Panama through the legal firm of Lette,
Marcotte, Biron and Sutto $3,943.95
(b) fees and expenses paid to the legal firm of Lette, Marcotte, Biron
and Sutto 676.75
(c) paid to the Consul General of Panama for the necessary consular documents to be issued closing the
log in Panama 89.00
(d) paid to the Consul General of
Panama 759.25
(e) legal and extra-legal fees for suppliant's counsel, Langlois, La-
flamme and Gaudreau 1,299.52
(f) general expenses incurred by
Vrac Mar Inc. 550.00
TOTAL $7,318.47
It thus appears that suppliant's claim includes an amount of $3,943.95 paid to the Republic of Panama, and $3,374.52 paid to counsel and for travel and other expenses, incurred in Ottawa for the purpose of obtaining Canadian registration.
Suppliant first requests this Court to recog nize the subrogation of rights granted to suppli ant by the Republic of Panama, signed by the Chargé d'Affaires of the Consulate of Panama in Montreal, Manuel de J. Rojas C., in the amount of $3,943.95, paid by suppliant in set tlement of all moneys owed to the government of Panama for taxes due by the ship Norsland, its owners or other persons with an interest in the said ship, or in the moneys deriving from sale of the said ship, as stated in the said subrogation. I feel it is proper to recognize by these presents that in consequence of the pay ment made by suppliant to the Republic of Panama, in the amount of $3,943.95, the said suppliant is and is deemed to be subrogated to the rights of the Republic of Panama. It appears from the record of this case, however, that on September 4, 1971 the Republic of Panama filed a-caveat for the amount of $2,187.15 only, and as we have seen, subsequently claimed an amount of $3,943.95, or $1,758.80 more. Although it seems strange that a lower amount should be claimed in the record by a caveat, and payment of a greater amount demanded, there may be an explanation. Further, it does not appear that the regulations relating to the caveat required that an amount be stated, though it is always better to indicate the amount owing or claimed. Suppliant will therefore be permitted to file a caveat against distribution and payment of money for the sums it is claiming in right of the Republic of Panama, on condition, obvious ly, that it establishes in court, in the proceeding
for final proof of claims and their priority, entitlement to a share of the sum claimed, and its priority in the list of claims. The amounts claimed for counsel's fees to provide suppliant with clear title are a debt arising after the date of sale of the ship, and filed after the date set for filing claims in the order for sale of the ship, and the question is whether such a claim can be considered in arriving at the order of priority. In any case here the amounts so paid will have to be proven for the services rendered. In these circumstances I do not see, any objection to allowing the caveat to include these amounts, but the value of the services rendered will also have to be proven when a final decision is given, and the right to claim these sums deter mined, as well as their order of priority. The motion requests that the amount of $7,318.47 be given priority of payment to suppliant, with interest, from the proceeds of sale of the Nors- land. Certainly, if this amount has priority or enjoys a special position, it will have to be paid accordingly. However, this is not what suppli ant is seeking. If I have understood its motion correctly it is seeking to have the amount treat ed as Court costs, and paid as such. Concerning the objection raised by the three counsel for the other creditors to having the Court determine the apportionment and priority of the total debt of $7,318.47, as well as the right to claim these amounts at this stage of the proceedings, and their claim that they have not had sufficient time to contest this motion, which in my opin ion moreover should also be decided in the proceedings instituted for final decision on these claims, I feel it is best to adopt this solution, and these questions will have to be settled at that time. However, I must stress the fact that if the ship's purchaser was unable to have it registered by the Canadian Ministry of Transport, this is due only to the existence of s. 7(2) of the Canada Shipping Act, R.S.C. 1970, c. S-9 which states that:
7. (2) Every British ship that is owned wholly by persons qualified to be owners of British ships and that is not registered out of Canada may be registered in Canada. (Italics mine.)
I must also note that under s. 2 of the Canada Shipping Act, "British ship" includes a Canadi- an ship, and under s. 6, a ship is a "British ship" if it is wholly owned by
(a) a British subject within the meaning of the British Nationality Act, 1948, as amended from time to time;
(b) a body corporate incorporated under the law of a Commonwealth country and having its principal place of business in that country.
On the other hand, the Republic of Panama, after filing a caveat for $2,585.15, refuses to comply with the proceedings for sale of the ship, and observe the order of this Court giving the purchaser a clear title. I do not for the moment wish to characterize this action by that country. I would say nevertheless that the refusal to comply with a judgment of this Court after filing a claim, in addition to being an affront to a Canadian court, represents a refusal by that country to abide by the decisions of a court in another country, and an exception to a rule honoured by every nation in the world. Indeed, if other countries, or other debtors, decided to follow this bad example, it would create confusion in an area which can be effec tively controlled only with the good faith of all seafaring nations. I therefore feel it is urgent and necessary, if the prestige of the decisions of our courts is to be maintained, and other coun tries or debtors dissuaded from following the example of the Republic of Panama, that the responsible authorities take steps to make the necessary amendments to the Canada Shipping Act, so that registration of a foreign vessel cannot be used to block registration in Canada of a ship sold under an order of this Court. I feel it is worth noting here that although Canada requires payment by shipowners only of certain charges known in English as "user charges", the Republic of Panama requires payment of annual taxes as well.
The Court accordingly allows subrogation of rights in suppliant's favour for the amount of $3,943.95, and allows filing of the caveat for this amount as well as for the amount of $3,- 374.52; but the whole is subject to the appor tionment and priority of these amounts, as well as entitlement, being determined in court at the final decision on claims and their priority. The costs of this motion shall be treated as costs in the case and also determined at the final deci sion on claims.
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