T-4368-76
Logistec Corporation (Plaintiff)
v.
The Ship Sneland (Defendant)
Trial Division, Marceau J.—Montreal, April 18
and 19; Ottawa, May 3, 1978.
Maritime law — Contracts — Action to recover cost of
materials and services provided for loading ship — Stowage
contract between plaintiff and agents of charterers only —
Clause in stowage contract that services performed on credit of
the vessel — Argued that charterers had authority to bind
leased ship because of provisions of charter contract suggest
ing owners had foreseen possibility of lien — Whether or not
clause in stowage contract has effect of creating lien against
the ship.
ACTION.
COUNSEL:
Pierre Tourigny and Normand Hébert for
plaintiff.
Jacques Laurin for defendant.
SOLICITORS:
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Quebec, for plaintiff.
McMaster, Minnion, Patch, Hyndman,
Legge, Camp & Paterson, Montreal, for
defendant.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: Plaintiff is attempting to recover,
by means of an action in rem against the ship
M/V Sneland—which was seized by order of this
Court on November 4, 1976—the cost of materials
and services that it provided for the loading of the
said ship at Quebec City between August 9 and
September 2, 1976.
Plaintiff has formally admitted (Rule 468 of the
Rules of this Court) that the ship Sneland was
chartered by its owners, Rich. Amlie & Company,
c/o Haugesund, Norway, to Al Patra Trading and
Contracting for a period of seven to nine months
beginning on or about August 1, 1976 (charterpar-
ty filed as No. D-1), and that the agents for Al
Patra Trading and Contracting were Surface Air
Multimodal Corp. and Canadian Middle East
Consulting Co. The services whose cost is here
claimed were performed under a stowage contract
with Canadian Middle East Consulting Co. Plain
tiff has also admitted that all the instructions for
loading, stowing and transporting the goods had
been given to it by the charterers and their agents,
in particular Canadian Middle East Consulting
Co., and that the services for which it is claiming
payment were performed solely at the request of
the charterers or their agents, in particular
Canadian Middle East Consulting Co., since no
contractual link existed between the owners of the
ship and itself. It was further established in evi
dence that the captain of the ship had never been
involved in the loading procedures or conditions or
in the loading itself, except in his capacity as
commander of the ship, responsible for its safety;
that plaintiff knew at the time of the contract and
its performance the status and capacity of its
contracting partner, Canadian Middle East Con
sulting Co., and that it had never, before service of
the action, had any communication or relations
whatever with the owners of the ship or their
agents.
Plaintiff argued, however, that one of the
clauses of its stowage contract with Canadian
Middle East Consulting Co. stipulated that:
It is expressly understood that insofar as loading and discharg
ing or other vessel's necessities are concerned, the services are
to be performed on the credit of the vessel, whether or not on
time charter to the Company, and Contractors shall have a lien
against the vessel to secure payment, notwithstanding the terms
and conditions of any charter party. All work performed as a
consequence of this contract to be the responsibility of the
Company including charges for account of other parties, such
as, delays due to defective ship's equipment, discharging and/or
loading cargo for which charges are payable by consignees
and/or shippers, overtime for account of others, etc.
In its view the effect of such a clause was to create
a lien on the ship, guaranteeing payment of its
debt and serving as a basis for an action in rem.
According to plaintiff, this clause showed its inten
tion of providing its services only on the credit of
the ship, which placed it in a situation differing
from that of the stevedores in Westcan Stevedor-
ing Ltd. v. The `Armar" [1973] F.C. 1232, and
Sabb Inc. v. Shipping Ltd., [ 1976] 2 F.C. 175, in
which the remedy in rem was denied. In addition
plaintiff added that some of the provisions of the
charter contract suggest that the owners had fore
seen the possibility of such a lien being created,
which would support the idea that the charterers
had the authority to bind the leased ship in this
way.
I am unable to grasp the sense of plaintiff's
argument. What is the legal nature of this lien that
it claims to have created on the ship? It is not a
maritime lien, since it is well established that the
Act grants no such lien to ensure payment of
stowage costs (see, in particular, The `Arman",
cited above); neither is it a charge such as the one
that may be claimed by a person on whom a right
of possession or retention has been conferred (on
this point see The "St. Merriel" [1963] 1 Lloyd's
Rep. 63). I need hardly add that there is clearly no
question of a mortgage. In speaking of a guarantee
on the credit of the ship, counsel for the plaintiff is
describing the effect that he wants in terms whose
meaning is, to say the least, ambiguous. He does
not indicate what may be the legal basis for such
an effect.
It may be true that in the two cases cited above,
on which counsel for the plaintiff sought to rely,
my brothers Collier and Dubé JJ. both emphasized
in their reasons the clear intention of the steve
dores, in the circumstances disclosed by the evi
dence, to rely strictly on the solvency of the chart-
erers. They may have spoken in this way because
developments in the proceedings led them to do so,
but they certainly did not say that the stevedores
need only have expressed their intention to "bind"
the ship when the contract was signed in order to
make the subsequent action in rem admissible.
Firstly, I do not believe that a lien of the type
claimed by plaintiff exists in law. Secondly, I see
nothing in the charterparty that gives the charterer
the power to create at will, without the knowledge
of the owners, a lien capable of producing the
desired effect, even assuming that it was legally
possible to create it. In my opinion, with the
exception of a few cases of special maritime liens
constituted by the Act, an action in rem against a
ship is possible only if an action in personam
against the owners of the ship is admissible. It is
clear that here the owners of defendant ship could
not have been held personally liable for the stow-
age contract between plaintiff and Canadian
Middle East Consulting Co., a contract in which
they did not participate either directly or indirectly
and which was not even made known to them
before the institution of the present proceedings.
In my view, the action cannot have any legal
merit whatsoever. It will therefore be dismissed
with costs and it will be ordered that the deed of
suretyship from the Bank of Montreal, dated
December 20, 1976, provided by the owners of the
ship in order to have the seizure lifted, be returned
to them immediately.
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.