The Hamilton Harbour Commissioners (Plaintiff)
v.
The ship A. M. German and the owner thereof
(Defendants)
and
The Hamilton Harbour Commissioners (Plaintiff)
v.
The ship Frank Dixon, her boiler, engine, auxili
ary machinery and superstructure, and the owner
thereof (Defendants)
and
The Hamilton Harbour Commissioners (Plaintiff)
v.
The ship Strathmore and the owner thereof
(Defendants)
Trial Division, Sweet D.J.—Toronto, June 25,
26, 27, 28, 29, 30, July 3 and August 22, 1973.
Maritime law—Hamilton Harbour Commissioners—
Powers of, under statute—No right to docking charges—No
right to seize ships for non-payment of docking charges—
Ship unable to move under own power—Whether a "ship"—
Federal Court Act, s. 2—The Hamilton Harbour Commis
sioners' Act, 1912 (Can.), c. 98.
Plaintiff corporation seized defendant's three ships for
non-payment of charges for docking the ships in its harbour
and for moving one of the ships in the harbour. Plaintiff
then brought this action for recovery of the docking and
moving charges. The Hamilton Harbour Commissioners'
Act, 1912 (Can.), c. 98 empowered plaintiff to impose by
by-law charges for using its harbour. A by-law had been
passed authorizing a pilotage fee for moving a vessel in the
harbour but no by-law had been passed authorizing docking
charges.
Held, (1) plaintiff had no right to docking charges.
(Defendant having however agreed to pay for use of harbour
facilities, plaintiff could recover the amount so agreed.)
(2) Plaintiff had no right under The Hamilton Harbour
Commissioners' Act to seize defendant's ships for non-pay
ment of docking and moving charges prior to the arrest of
the ships under a warrant issued out of this Court.
(3) The three ships, though none could operate on its own
power, were nevertheless ships within the meaning of the
definition of "ships" in section 2 of the Federal Court Act
since they were "designed for use in navigation".
ACTION.
COUNSEL:
A. J. Stone, Q.C. for plaintiff.
M. J. Perozak, Q.C. for defendants.
SOLICITORS:
MacKinnon and McTaggart, Toronto, for
plaintiff.
Perozak and Winchie, Hamilton, for
defendants.
SWEET D.J.—These three cases, arising out of
the same circumstances, were tried together, the
evidence, by agreement, having been made ap
plicable to each. They may, accordingly, con
veniently be dealt with together here.
The first of the above entitled cases will be
referred to as the German case; the second as
the Dixon case, and the third as the Strathmore
case.
The plaintiff is a corporation incorporated by
Act of the Parliament of Canada, 2 George V. c.
98. The Hamilton Harbour Commissioners has
jurisdiction over the harbour of Hamilton,
Ontario and, speaking generally, its function and
purpose, subject to what is contained in that
Act, is to administer and conduct the affairs of
the harbour, to govern and regulate navigation
using it and to hold lands in connection with it.
It is common ground that the owner of the
three ships is Trans Continental Steel & Salvage
Incorporated and I find that it is such owner. I
also find that at all relevant times Mr. Kenneth
G. Barfknecht, a witness, was the owner's
representative authorized to act for it and in its
behalf in all matters relevant to these actions.
The following are extracts from the amended
statement of claim in the German case:
2. The defendant ship is owned by Trans Continental Steel
& Salvage Incorporated of R. R. #1, Bolton, in the County
of Peel.
3. On the 10th day of July, 1972, without any prior agree
ment or authority of the plaintiff, the defendant ship to
gether with the Ships "STRATHMORE" and "FRANK DIXON"
were at the instance of her owner moored at Pier No. 23 for
the apparent purpose of dismantling the same on and in the
area adjacent to the said pier. Since the date aforesaid, the
plaintiff has sought on several occasions and by letters to
the said owner dated July 28, 1972 and August 8, 1972 to
make formal arrangements for the berthing and dismantling
of the defendant ship as well as the Ships "STRATHMORE"
and "FRANK DIXON" in Hamilton Harbour, but all such
attempts have failed and the plaintiff has demanded and the
defendants have refused or neglected to remove the defend
ant ship from the said Pier No. 23 although requested to do
so by letter addressed to the defendant owner by the plain
tiff dated the 17th day of August, 1972. Additionally, all
charges invoiced to the defendant owner for the use of the
said dock and adjacent area up to and including November
3, 1972, are outstanding and unpaid and the defendant
owner has refused or neglected to pay the said charges
which up to the said 3rd day of November, 1972, aggregated
the sum of $1,475.80 in respect of all three vessels referred
to herein.
4. On the 6th day of November, 1972, the plaintiff pursuant
to its statutory powers in this behalf, moved the defendant
ship from the said Pier No. 23 to the south-west corner of
the Wellington Street slip in Hamilton Harbour at a cost to
the plaintiff of $90.00.
5. The sum owing to the plaintiff is in respect of dock
charges for the use of the said Pier No. 23 and adjacent area
by the defendants, such charges being calculated at the rate
of $375.00 per month in respect of all three vessels referred
to in paragraph 3 hereof, and as of the 3rd day of Novem-
ber, 1972, amounting to the aggregate sum of $1,475.80.
6. The plaintiff therefore claims
(a) the sum of $581.94 together with all additional unpaid
amounts accruing after the 3rd day of November 1972,
and interest thereon in respect of dock charges and other
charges;
(b) its costs of this action;
(c) such further and other relief as this Court may deem
just.
The general purport of the statement of claim
in the Dixon and Strathmore cases is the same
as in the German case. The following are
differences:
1. In the Dixon case:
(a) Not only is the ship referred to but refer
ence is also made to "Her Boiler, Engine,
Auxiliary Machinery and Superstructure".
(b) The first sentence in section 4 is
While the Defendant Ship was moored at the said Pier No.
23, she broke away and was salvaged and towed back to
the said pier by the plaintiff at a cost of $40.00 ... .
(c) There is the following section which is not
in the statements of claim in either the Dixon
or Strathmore cases:
5. Since the 10th day of July, 1972, the said Defendant
Ship has been partially dismantled in that Her Boiler,
Engine, Auxiliary Machinery and Superstructure have
been removed and are now lying in various places at the
east wall of Pier No. 23 with some of the Superstructure
lying across the Plaintiff's railway siding serving the said
Pier No. 23 and obstructing the use thereof by the
Plaintiff.
(d) Instead of "$581.94" in section 6(a) in the
German case, there is "$621.93" in section
7(a).
2. In the Strathmore case, instead of
"$581.94" in section 6(a) in the German case
there is "$581.93".
Accordingly, without taking into account any
claimed "additional unpaid amounts accruing
after the 3rd day of November, 1972 and inter
est thereon in respect of dock charges and other
charges" the total of the amounts claimed by
the plaintiff in the statements of claim of the
three actions is $1785.80 made up as follows:
Towing the Frank Dixon back to pier no. 23 . $ 40.00
Moving the three ships from pier no. 23 to the
Wellington Street slip .. $ 270.00
Dock charges for the three ships for the use of
pier no. 23 and adjacent area $ 1475.80
Total ......... .... ...... .. . ..... . . $ 1785.80
The plaintiff's figures in its statements of
claim are not in accordance with copies of
invoices and a statement (Ex. 18) produced
through Mr. Robert Smith, chief accountant
with the plaintiff. According to that material the
situation as of November 3rd, 1972, as claimed
by the plaintiff, would appear to be as follows:
Invoice or Credit Debit Credit Balance
Invoice: July 1/72;
side wharfage . .. 54.18 $ 54.18 Dr.
Invoice or Credit Debit Credit Balance
Invoice: July 28/72;
berth and area . 500.00 $ 554.18 Dr.
Payment: Aug. 8/72 54.18 $ 500.00 Dr.
Invoice: Aug. 17/72;
Berth and Area $750.00
Replacing invoice of
July 28/72. 500.00
750.00 $ 750.00 Dr.
Invoice: Oct. 17/72;
Berth and Area . 375.00 $1125.00 Dr.
Invoice: Oct. 17/72;
Securing Frank Dixon . 40.00 $1165.00 Dr.
Invoice: Nov. 6 1972;
Berth and Area $350.80; 350.80 $1515.80 Dr.
Moving 3 ships from Pier
23 to Wellington Street
slip: $270.00, (not in
cluded in this group be
cause moving appears to
have been done Nov. 6
1972).
Accordingly, on the basis of the material pro
duced at the trial by the plaintiff a summary of
the situation as of November 3rd, 1972 would
be:
Towing back the Frank Dixon to pier no. 23: $ 40.00
Dock charges for the three ships for the use of
pier no. 23 and adjacent area:.. $ 1475.80
Total ... .. $ 1515.80
Continuing the accounting on the basis of that
material down to the beginning of November 7,
1972 (November 7, 1972, according to the
records, being the dating of all three original
statements of claim) the situation would appear
to be:
Debits Credits Balance
As of November 3, 1973
as above: .. . . $1515.80 Dr.
Debits Credits Balance
Invoice: Nov. 6, 1972
(supra) for moving 3
ships from pier no. 23 to
Wellington Street slip on
Nov. 6/72... . 270.00 $1785.80 Dr .
Invoice: Nov. 15/72:
moving 3 ships from pier
23 to pier 10.
(This is same moving for
which a charge of $270.00
was made as above.) .... 240.00 $2025.80 Dr.
Credit note:
June 15/73; re charge of
$270. in invoice: Nov.
6/72 $ 270.00 $1755.80 Dr.
Thus, on the basis of the above figures, a
summary as of the beginning of November 7,
1972 would be:
Towing the Frank Dixon back to pier no. 23 . $ 40.00
Moving the three ships from pier no. 23 to the
Wellington Street slip .. . . ..... . . $ 240.00
Dock charges for the 3 ships for the use of pier
no. 23 and adjacent area ..... .. . . $ 1475.80
Total ..... . . .. .... . . .... . $ 1755.80
The Trial Division of this Court obtains juris
diction in respect of the plaintiff's claims by
virtue of section 22 of the Federal Court Act.
Subsection (1) of section 22 is:
22. (1) The Trial Division has concurrent original juris
diction as well between subject and subject as otherwise, in
all cases in which a claim for relief is made or a remedy is
sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within
the class of subject of navigation and shipping, except to the
extent that jurisdiction has been otherwise specially
assigned.
Not without relevance is the question as to
whether the three ships, which are subject mat
ters of these actions, would classify as ships
within the meaning of the Federal Court Act.
I think that when they were towed into the
harbour they would fall within that category.
The purpose of bringing them into the harbour
was to scrap them and sell the salvaged ma
terials. If the wrecking process had been com
pleted they would at some stage of that process
have wholly lost their utility as ships. When the
process advanced far enough they would have
lost all the characteristics of ships, as ships are
spoken of in common parlance.
There was some wrecking done on these
ships. There was evidence to the effect that
none could have been operated on its own
power.
Nevertheless I am of the opinion that there is
jurisdiction in this Court to deal with the plain
tiff's claims.
The definition of "ship" in section 2 of the
Federal Court Act is:
"ship" includes any description of vessel or boat used or
designed for use in navigation without regard to method
or lack of propulsion;
If the original concept in or purpose of the
construction of a vessel or boat was that it be
used in navigation then, as I construe the defini
tion, it was "designed for use in navigation"
within the meaning of section 2. It would then
be a "ship" as used in the Federal Court Act. I
think that this construction is emphasized by the
French version of the legislation.
In my view, having once qualified as a "ship"
because it was designed for such use, the prop
erty never loses its classification as a ship
within the meaning of the Federal Court Act,
regardless of changes to it unless it be taken
apart to the extent that the separated compo
nents would merely be individual objects which
were used in the construction of the ship.
In my opinion the three "ships" having been
designed for use in navigation were, in their
condition at the time of the trial, "ships" within
the meaning of the Federal Court Act.
Furthermore, in my view, this Court would
have jurisdiction to adjudicate upon the plain
tiff's claims for dock charges even if they would
not qualify as ships.
Relevant portions of section 22(2) are:
22. (2) Without limiting the generality of subsection (1), it
is hereby declared for greater certainty that the Trial Divi
sion has jurisdiction with respect to any claim or question
arising out of one or more of the following:
(s) any claim for dock charges, harbour dues or canal
tolls, including, without restricting the generality of the
foregoing, charges for the use of facilities supplied in
connection therewith.
In that paragraph (s) there is no mention of
ships. In my opinion, it is applicable to any
claim for dock charges, or harbour dues wheth
er or not those charges or dues were made in
connection with ships as defined in that Act.
The following are relevant portions of section
20 of The Hamilton Harbour Commissioners'
Act, S.C. 1912, c. 98:
20. The Corporation may make by-laws, not contrary to
law or to the provisions of this Act, for the following
purposes:—
(g) For the imposition and collection of all rates, tolls and
penalties imposed by law or under any by-law under the
authority of this Act;
(D For the government of all parties using the harbour and
of all vessels coming into or using the same, and by such
by-laws to impose tolls to be paid upon such vessels and
upon goods landed from or shipped on board of the same
as they think fit, according to the use which may be made
of such harbour and works aforesaid;
2. No by-law shall have force or effect until confirmed by
the Governor in Council and published in The Canada
Gazette, and every such by-law shall, at least ten days
before it is submitted to the Governor in Council, be served
upon the city clerk of Hamilton.
3. A copy of any by-law certified by the secretary under
the seal of the Corporation shall be admitted as full and
sufficient evidence of such by-law in all courts in Canada.
The only statutes amending The Hamilton
Harbour Commissioners' Act to which I have
been referred are, The Hamilton Harbour Com
missioners' Act, 1951, S.C. 1951, c. 17, and The
Hamilton Harbour Commissioners' Act, 1957,
S.C. 1957-58, c. 16. Neither of those Acts
affects the issues here.
The plaintiff, a statutory corporation, a crea
tion of The Hamilton Harbour Commissioners'
Act, has only the powers, the capacity and the
competence with which it is endowed by that
Act or any amending statute or some other Act
of the Parliament of Canada. It does not have
the powers, the capacity nor the competence of
a common law corporation or of a natural
person.
In my opinion, the specific provision in that
Act to the effect that the plaintiff may make
by-laws for the imposition and collection of all
rates and tolls impels the conclusion that for
rates and tolls to be imposed or collected in
respect of the Hamilton harbour there must be a
by-law providing for them. If there is no such
by-law there can be no rates or tolls imposed or
collected by the plaintiff. If there is such a
by-law then the plaintiff is limited in the amount
that it may impose and collect by what is con
tained in the by-law.
In this connection counsel for the plaintiff
submitted that section 14(1) of the Act was
sufficient to empower the plaintiff to impose
and collect amounts for the use of the harbour
because the wording "The Corporation
may ... administer on behalf of the city of
Hamilton, subject to such terms and conditions
as may, at the time the control thereof is trans
ferred to the Corporation, be agreed upon with
the council of the said city, the dock property
and water lots owned by the city of Hamil-
ton ... and all other property which may be
placed under the jurisdiction of the Corpora
tion".
I do not agree.
The plaintiff can only "administer" in accord
ance with what is contained in the Act and the
Act provides for a by-law for the imposition and
collection of tolls. The general power to admin
ister must be in accordance with the specific
requirement for a by-law. Furthermore, there
was no evidence as to what were the terms and
conditions, if any, agreed upon with the council
of the city at the time of any transfer referred to
in the section.
The failure to pass such a by-law is not to be
treated as a mere technical lapse nor as an
inadvertent oversight. The requirement of a
by-law is more than regulatory. It is, in my
opinion, mandatory and a condition precedent
to the imposition and collection of rates and
tolls.
The provision that no such by-law shall have
force or effect until confirmed by the Governor
in Council makes the Governor in Council a
significant and essential participant in the
matter of rates and tolls. The Governor in Coun
cil has, by the Act, what is tantamount to super
vision over the whole matter of rates and tolls.
The provision that every such by-law must be
served upon the city clerk of Hamilton at least
ten days before it is submitted to the Governor
in Council is also important. The city of Hamil-
ton has a substantial interest in what such rates
and tolls are to be.
Section 16 of The Hamilton Harbour Com
missioners' Act is:
16. After providing for the cost of management of all the
property which the Corporation owns, controls, or manages
under the preceding sections, and after providing for the
cost of works or improvements authorized by the Corpora
tion and for the performance of the other duties imposed
upon the Corporation, and for capital charges and interest
upon money borrowed by the Corporation for improve
ments, and for all other liabilities of the Corporation, and for
a sinking fund to pay off any indebtedness incurred by the
Corporation, any surplus profits shall be the property of the
city of Hamilton, and shall be paid over by the Corporation
to the city treasurer.
It would not be unreasonable to conclude that
the requirement of the service of the by-law
upon the city clerk of Hamilton was so that the
Corporation of the City of Hamilton, because of
its ultimate interest in the matter of tolls and
rates, having regard to section 16, may make
representations to the Governor in Council if it
chooses to do so.
There are, of course, reasons other than the
collection of that surplus which might very well
be of great significance to Hamilton. One would
think that shipping, generally, would be of
importance to a city such as Hamilton and to its
industries. The city council might wish to be
assured that the rates and tolls would not be
such as would discourage the use of the Hamil-
ton harbour or place too great a burden upon
those who must use it.
The only by-law of the plaintiff which was
proven or even produced, was by-law no. 84
which deals with a number of matters and
includes items in section 139 thereof under the
heading "Pilotage Dues".
Included in section 139 is:
(1) Where an employee of the Commission is engaged as a
pilot on board a vessel moving into, out of or within the
harbour, the following dues shall be paid for the following
pilotage services:
c) For the moveage of a vessel
(i) Not over 260 feet in length $25.00
In subsection (5) of section 139 moveage is
said to mean "the moving of a vessel from one
berth or anchored position to another berth or
anchored position within the harbour". In my
opinion, this constitutes authorization for the
plaintiff charging $25.00 but no more, for each
of the three vessels it moved from pier 23 to the
Wellington Street slip.
Although, as appears later when I deal with
the counter-claims, I do not think that under the
circumstances the plaintiff was entitled to seize
and detain the ships when it did for the purpose
of recovering the charges for moving the ships
from pier 23 to the Wellington Street slip, it is
my opinion that the plaintiff's control over the
harbour pursuant to The Hamilton Harbour
Commissioners' Act was sufficient for it to
move the ships under the circumstances and to
charge for it pursuant to by-law 84.
By-law 84 does not authorize any charge for
towing the Frank Dixon back to pier 23 for
which the plaintiff claims $40.00 because then
the vessel was not moved "from a berth or
anchored position".
In my opinion, there is nothing in by-law 84
to authorize what the plaintiff refers to as dock
charges in its statements of claim. Those dock
charges are, in my opinion, rates and tolls within
the meaning of section 20 of the Act.
Mr. E. D. Hickey, chairman of the Hamilton
Harbour Commissioners, gave evidence to the
effect that the Commission had adopted a stand
ard charging policy for what it called its termi
nals. There was also reference in the plaintiff's
evidence regarding "published rates". Although
I find that Mr. Hickey's evidence is to be
believed that evidence did not constitute proof
of a by-law authorizing a charging policy or the
so-called "published rates".
It is a commonplace that in order that a
by-law may be relied upon, it must be proven.
The method by which a by-law of the plaintiff
may be proven is set out in subsection (3) of
section 20 (supra) of the Act.
I find that there was no proof of any by-law
of the plaintiff authorizing or providing for any
of the charges in respect of which the plaintiff
seeks recovery in these actions except for the
moving of the three vessels from pier no. 23 to
the Wellington Street slip and in respect of that
to the extent of only $25 in each action.
However, the matter does not end there.
The plaintiff based its dock charges on a
combination of two methods of computation.
One of these was a charge for side wharfage,
computed on the length of the vessels and at
one cent per day for each lineal foot of each
vessel. The respective lengths of the ships were:
the A. M. German: 88 feet; the Frank Dixon: 89
feet and the Strathmore: 81 feet. The other was
computed on an area basis and at six cents per
square foot per annum of land occupied cal
culated pro rata according to the time of occu
pation. The plaintiff claimed that in these cases
the area for which the defendants together
should be charged was 25,000 square feet.
Notwithstanding that in the statements of
defence the defendants asked that the actions
be dismissed, counsel for the defendant-owner
at the trial took the position, as I understand it,
that it should not have been charged for the area
used but that on the basis of an alleged purport
ed agreement with one, Kenneth Elliott, the
charge should have been confined to what it
would be calculated only at one cent per day for
each lineal foot of each vessel. As I also under
stand the position of counsel for the defendants
at the trial he indicated in effect that the defend-
ant-owner was willing to pay the plaintiff on
that basis.
That expression of willingness, as I under
stand it to have been, might strictly be con
strued as something less than an admission of
liability. However, if there be such an indication
of willingness to pay (as I understand there was)
at the trial of actions pursued to obtain remedies
through the processes of the Court it would be
dalliance with semantics to say that judgment
should not follow for at least that amount. Here,
part payment has been made.
There was some difference between counsel
as to what the amount for which judgment
would go for the plaintiff if the defendants were
properly chargeable for side wharfage but not
for area. The amount settled upon by counsel
for side wharfage without an area charge was
$290.00. In this the plaintiff did not waive any
of the other amounts in respect of which it
seeks recovery in these actions.
Adding that $290.00 to the sum of $75.00 for
moving the ships the total would be $365.00.
Accordingly, and allocating the $290.00 item
among the three actions having regard to the
respective lengths of the ships, there will be
judgments for the plaintiff as follows:
1. In the German case:—$124.00;
2. In the Dixon case:—$125.00;
3. In the Strathmore case:—$116.00.
In the event that a tribunal which may review
this matter may reach a conclusion different
from mine regarding the result arising out of the
circumstance that no by-law for the imposition
and collection of rates and tolls other than
by-law no. 84 was proven, it may be helpful if I
deal with what I consider the situation would
have been had the plaintiff been in a position to
impose and collect rates and tolls and make
charges and receive compensation for the use of
the harbour facilities without such a by-law
other than by-law no. 84.
A principal submission of the defendants was
that there was an implied agreement binding
upon the plaintiff arising out of an alleged assur
ance by Kenneth Elliott, that the defendant-
owner could enter and use the harbour facilities
at one cent per lineal foot of each ship per day.
On behalf of the defendant-owner it was fur
ther submitted that even if Mr. Elliott were not
the appointed agent of the plaintiff, the plaintiff
would, nevertheless, be bound on the principle
of holding out.
The defendant-owner based such portion of
its defence upon the following submissions:
1. Elliott, at the time of giving the alleged
assurance was one of the three commission
ers of which the Corporation, The Hamilton
Harbour Commissioners, consisted. Since he
occupied that position the defendant-owner
was justified in believing he could be relied
upon.
2. When informed of the representations
claimed to have been made to the defendant's
representative by Elliott, the plaintiff did not
deny his authority and did not repudiate those
alleged representations.
3. Elliott had, and to the knowledge of the
plaintiff, previously personally been interest
ed in contracts made with the plaintiff.
4. No agreement as to rates was made
between the parties other than the purported
agreement made on behalf of the plaintiff by
Elliott.
In my view such a defence would fail.
It is my opinion that no individual commis
sioner has any status to exercise the corpora
tion's powers. It is only The Hamilton Harbour
Commissioners, the corporation, which may
exercise such powers pursuant to The Hamilton
Harbour Commissioners' Act. Although a com
missioner has, as such, a voice in the affairs of
that corporation it is only the corporation per se
which acts.
I find that Elliott did not have any authority
to act on behalf of the plaintiff.
I find that the plaintiff did nothing and did not
omit to do anything which would justify the
defendant-owner in believing that Elliott was
authorized to act on its behalf and that it did
nothing and did not omit to do anything which
would constitute a ratification of any agreement
which Elliott may have purported to make on its
behalf.
The evidence of Mr. Barfknecht, the defend-
ant-owner's representative, was to the effect
that Elliott, by verbal arrangement made
between them, was to have a financial interest
in the scrapping of the ships and disposition of
the resulting salvaged material.
Section 27 of The Hamilton Harbour Com
missioners' Act is:
27. The Corporation shall not have any transactions of
any pecuniary nature, either in buying or selling, with any
members thereof, directly or indirectly.
Although this only specifically prohibits
transactions involving buying or selling it does
indicate, I think, a general principle which
should be followed, namely, no person who is a
commissioner should transact any business in
which he has a pecuniary interest with the
corporation.
However, even without that section,—even if
it did not exist, any possible conflict of interest
between The Hamilton Harbour Commissioners
and any member of it should be avoided. It is
demonstrable that it should be avoided even if
in the result the transaction was equally advan
tageous to The Hamilton Harbour Commission
ers as was any other transaction in which no
commissioner had any pecuniary interest.
If Mr. Barfknecht's evidence that the original
arrangement was that Elliott was to have a
financial interest in the scrapping of the three
vessels and the disposition of the salvaged ma
terial is correct, then Barfknecht must have
been aware of a possible conflict of interest
between Elliott and The Hamilton Harbour
Commissioners. This would, in my opinion,
negate any possibility that Elliott had any osten
sible authority to act on behalf of the plaintiff.
It should indicate to the defendant-owner and
its representative that Elliott was not in a posi
tion to make any arrangement binding upon the
plaintiff.
It could not be said that the plaintiff could
now recover on the basis of obtaining damages
for trespass. Whatever might have been its
rights, if any, in that connection, it would have
lost them by its subsequent course of action,
including invoicing for charges claimed. In any
event according to its pleadings the plaintiff's
claim sounds in contract and not in tort.
I do not think that any useful purpose will be
served by a review of the minutiae of evidence
so painstakingly presented. It is, I think, suffi
cient to say that I am satisfied that the charges
for dock wharfage, including area charges,
which the plaintiff seeks to recover in these
actions, are consistent with charges made gener
ally by the plaintiff in connection with the use
of the facilities of the harbour. They have, so
far as reasonableness is concerned, the test of
the marketplace. If it were not for the necessity
of proof of an appropriate by-law, it would be
my view, that up to the time of the commence
ment of the proceedings the plaintiff would
have been entitled to recover in total the sum of
$1590.80 made up as follows:
Towing the Frank Dixon back to pier no. 23. $ 40.00
Moving the three ships from pier no. 23 to the
Wellington Street slip, in accordance with by
law 84 ... . . .. . ... . $ 75.00
Dock charges for the 3 ships for the use of
pier no. 23 and adjacent area . ... $ 1475.80
Total .. $ 1590.80
In each of the three actions the defendants
counterclaim. Wording of each counterclaim
contains:
The Defendants state that as a result of the wrongful and
improper removal and seizure by the Plaintiff without notice
to the Defendants of such seizure and removal, and also
because of the negligence of the Plaintiff in pursuing such
wrongful seizure and removal, that the Defendant-owner
and Defendants suffered serious damages to the extent of
$4900.00 as of the date of this Counter-claim; and the
Defendant-owner maintains that such damage will increase
and continue beyond the aforementioned figure as long as
and until the Plaintiff wrongfully withholds the Defendant
Ships from the Defendant-owner.
Warrants for the arrest of the ships were
issued out of this Court on November 8, 1972.
On November 6, 1972 the ships were seized
by the plaintiff. The plaintiff claims that that
seizure was pursuant to The Hamilton Harbour
Commissioners' Act.
Extracts from The Hamilton Harbour Com
missioners' Act are:
24. The Corporation may, in the following cases, seize and
detain any vessel at any place within the limits of the
province of Ontario:—
(a) Whenever any sum is due in respect of a vessel for
rates or for commutation of rates, and is unpaid;
25. The Corporation may seize and detain any goods in
the following cases:—
(a) Whenever any sum is due for rates in respect of such
goods, and is unpaid;
3. In this Act, unless the context otherwise requires,—
(c) "vessel" includes every kind of ship, boat, barge,
dredge, elevator, scow or floating craft propelled by
steam, or otherwise;
(d) "goods" means any movables other than vessels;
(e) "rates" means any rate, toll, or duty whatsoever
imposed by this Act.
Because of the failure to prove any by-law
other than by-law 84 this matter is dealt with on
the basis that at the time of seizure on Novem-
ber 6, 1972 there was nothing due to the plain-
tiff from the defendant-owner in respect of the
ships other than anything which was owing for
the moving of the ships. An indication of will
ingness on behalf of a defendant made at a trial
would not, merely because made at such trial,
be referable to a date some months prior to the
trial. Accordingly unless the plaintiff was en
titled to seize for the $75.00 for moving the
ships the seizure and detention on November 6,
1972 was done without right or legal justifica
tion. It might be, on the evidence of Mr. Lloyd
Day, the Harbour Master, that he considered he
had taken possession of the ships on November
6, 1972 even before they were moved. In any
event, and at the very least, if the plaintiff
sought payment for the moving, as it obviously
does, then the defendant-owner was entitled to
be informed of the moving and its cost and I
find that was not done. As I previously indicat
ed it is my opinion that the plaintiff's control
over the harbour was such that it was entitled to
move the ships and charge for it pursuant to
by-law 84 under the circumstances. On the
other hand I find the drastic remedy of seizure
and detention pursuant to The Hamilton Har
bour Commissioners' Act was not available to it
on November 6, 1972.
So drastic is that remedy pursuant to The
Hamilton Harbour Commissioners' Act there is
not even provision in that Act for the releasing
of seized ships in disputed matters on the post
ing of an adequate bond of indemnity.
Moreover there was no evidence that subsec
tion 3 of section 26 of that Act namely:
3. The seizure and detention may be effected upon the
order of—
(a) any judge;
(b) any magistrate having the power of two justices of the
peace;
(c) the Collector of Customs at the port of Hamilton.
was complied with.
I find the seizures made on November 6,
1972 and the detentions until warrants for arrest
issued out of this Court on November 8, 1972
were executed were illegal.
A position taken on behalf of the defendants
appears to contemplate an arrest on a warrant
issued out of this Court being illegal if the
amount then claimed was greater than was actu
ally owing.
It is also my view that in the absence of abuse
of the process of the Court no action for dam
ages would lie against a person causing an arrest
of a ship to be made pursuant to the rules of the
Federal Court of Canada if the amount owing
were less than the amount claimed or even if
nothing were owing. Otherwise the remedy of
arrest in disputed claims would put the person
invoking the remedy at great risk,—a risk,
which in my view, was not intended and was not
created. I find there was no abuse of the pro
cess of the Court.
I find that there was no illegality associated
with the arrest on the warrant issued out of this
Court.
Evidence was given by Mr. Barfknecht in a
general way as to what he indicates were dam
ages of the defendant-owner. For one thing I do
not consider that it was established that he is
qualified or has sufficient expertise to give
cogent evidence as to any such damages. Fur
thermore I consider that his evidence in this
connection was so devoid of adequate detail
that it does not have any significant value. I find
it to have been unsupported and uncorroborated
by tangibles. It seemed to me to be replete with
exaggeration.
I find that the defendant-owner has not met
the onus which is upon it to establish quantum
of damages.
The defendant-owner has not claimed puni
tive damages.
Having regard to what I find to have been the
illegal seizure and detention purported to have
been made pursuant to The Hamilton Harbour
Commissioners' Act and my other findings
including my findings in connection with lack of
adequate evidence of damage, I find that the
defendant-owner is entitled only to nominal
damages in respect of that illegal seizure and
detention and nothing more. Those nominal
damages are fixed at one dollar in each case.
I do not consider these to be cases for costs.
In the result:
In the German case, the plaintiff will have
judgment for $124.00 without costs.
In the Dixon case, the plaintiff will have judg
ment for $125.00 without costs.
In the Strathmore case, the plaintiff will have
judgment for $116.00 without costs.
The defendant-owner will have judgment for
$1.00 on its counter-claim in each case all with
out costs.
If there be any difficulty in settling the formal
judgment it may be spoken to.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.