Judgments

Decision Information

Decision Content

T-2460-83
Adrian Balodis et al. (Plaintiffs) v.
The Ship Prince George, Canadian Cruise Lines Ltd., Canadian Cruise Lines 1982 Ltd. and Canadian Cruise Holdings Ltd. (Defendants)
and
Continental Bank of Canada (Intervenor)
Trial Division, Collier J.—Vancouver, July 17 and 25, 1984.
Jurisdiction — Federal Court — Trial Division — Admi ralty — Vessel under arrest — Claimants engaged as watch- keepers during layup and arrest — Claim for seamen's wages
— Whether claimants "members of crew" within s. 22(2)(o) of Federal Court Act — Whether section to be given restricted interpretation as in U.K. — S. 22(2)(o) illustrative of broad admiralty jurisdiction of Court — Specific jurisdictional claims in s. 22(2) not excluding general jurisdiction conferred by s. 22(1) and definition of "seaman" in Canada Shipping Act
— Claim for seamen's wages properly asserted, independently from any categorization as "members of crew" — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 22(1),(2)(o) — Canada Shipping Act, R.S.C. 1970, c. S-9, s. 2 — Adminis tration of Justice Act, 1956, 4 & 5 Eliz. 2, c. 46.
Maritime law — Priorities — Claimants engaged as watch- keepers during layup and arrest of vessel — Claim for sea- men's wages — Whether "members of crew" within meaning of s. 22(2)(o) of Act — Seamen "crew" even absent master, officers and other complement — Arrest not resulting in disbandment of "crew" — American cases distinguished — Claim for seamen's wages having priority over other claims — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 22(1),(2)(o).
The Prince George, a cruise vessel, was arrested on Septem- ber 3, 1983. The present claimants were, prior to the arrest, seamen and members of the vessel's crew. On the date of the arrest, they were engaged as watchkeepers. Besides security watch, they performed other services related to the general upkeep of the vessel during her layup and arrest. The Continen tal Bank of Canada, the intervenor, took over the management of the vessel on January 13, 1984. The intervenor argues that the claimants are not "members of the crew" within the meaning of paragraph 22(2)(o) of the Federal Court Act and therefore not entitled to assert a claim for seamen's wages in this Court. This argument is based on an author's statement that the English Administration of Justice Act, 1956, in defin ing admiralty jurisdiction, did not perpetuate the expression "seaman" but introduced a new formulation giving the court jurisdiction to determine a claim for wages instituted by "a
member of the crew", and that therefore the phrase "member of the crew" is more confined in its ambit than the term "seaman". The intervenor contends that paragraph 22(2)(o), which contains the words "member of the crew", should also be given a restricted interpretation.
Held, the claimants are each entitled to be paid out of the funds in Court the amount of $9,000, plus interest at the agreed rate, for the period September 3, 1983 to January 13, 1984, in priority to the other claimants.
The intervenor's contention cannot succeed.
Two seamen can, even absent master, officers and other complement, in circumstances such as the present ones, consti tute a crew. Mere arrest does not result in an automatic disbandment of "crew". The American decisions to which the intervenor referred must be distinguished. They are based on particular wordings, founded in a compensation statute, exclud ing particularly defined persons.
Paragraph 22(2)(o) is a mere illustration of the wide admi ralty jurisdiction of this Court. It cannot be seen as possible restriction, as now appears to be the case in the United Kingdom. As specifically stated in the opening words of subsec tion 22(2), the enumeration of illustrative jurisdictional claims does not exclude, or inhibit, the general jurisdiction given by subsection 22(1) and the definition of "seaman" in section 2 of the Canada Shipping Act. On the basis of those provisions, the claimants here can, under existing Canadian maritime law, assert a claim for seamen's wages, and that, quite apart from any categorization as "members of the crew".
CASES JUDICIALLY CONSIDERED •
APPLIED:
Jorgensen v. The Chasina (1925), 37 B.C.R. 24 (Adm.).
CONSIDERED:
Jane and Matilda Chandler (1823), 1 Hag. Adm. 187 (H.C. of Adm.); Reg. v. City of London Court (Judge of) and Owners of S.S. Michigan (1890), 25 Q.B.D. 339; Connor v. The "Flora" (1898), 6 Ex.C.R. 131; Tropwood A.G. et al. v. Sivaco Wire & Nail Co. et al., [1979] 2 S.C.R. 157.
REFERRED TO:
Demetries Karamanlis v. The Norsland, [1971] F.C. 487 (T.D.); Antares Shipping Corporation v. The Ship "Capricorn" et al., [1980] 1 S.C.R. 553.
COUNSEL:
Sandra Banister for claimant O'Dwyer. Lorraine Shore for claimant Josefsson. S. R. Ross for intervenor.
L. M. Cohen for Canada Ports, Revenue Canada and Transport Canada.
M. J. Edwards for Al Malaikah Temple.
SOLICITORS:
Laxton, Pidgeon & Company, Vancouver, for claimant O'Dwyer.
McTaggart, Ellis & Company, Vancouver, for claimant Josefsson.
Swinton & Company, Vancouver, for inter- venor.
Deputy Attorney General of Canada for Canada Ports, Revenue Canada and Trans port Canada.
Edwards & Michalski, New Westminster, British Columbia, for Al Malaikah Temple (K. Boucher).
The following are the reasons for judgment rendered in English by
COLLIER J.: The Prince George is a cruise vessel. In 1981, 1982 and 1983 she sailed from Vancouver into Alaskan waters. On August 20, 1983 she returned to Vancouver from a cruise voyage to Alaska. Her next sailing was scheduled for September 3. On that day she was arrested by several, of many, claimants. On February 24, 1984, this Court directed she be sold. An offer to purchase, of $1,000,000 was approved on April 30, 1984. The purchase monies were paid into Court.
The Prince George was never, at any material time, released from arrest.
The present claimants, on the two motions before me, are Robin Josefsson and Jack O'Dwyer. They were, prior to September 3, 1983, seamen, and members of the Prince George's crew.
Josefsson signed articles on July 9, 1983. He served as an oiler. He made six return trips. He signed off his articles on August 20, 1983. It was agreed he would rejoin the vessel, for its next voyage, on September 3, 1983. He came to Van- couver that day to find the vessel arrested. But he signed on again on that date.
O'Dwyer was employed on the Prince George during the 1981, 1982 and 1983 cruise seasons. In 1983 he worked as Housekeeper and Assistant Purser. His 1983 articles commenced May 7,
1983. He has never signed off, or surrendered, those articles.
Josefsson and O'Dwyer were, on September 3, 1983, engaged as watchkeepers on the vessel. They were paid $500 per week. The arrangement was made through Frederick Wright, the president and general executive officer of the owners and opera tors of the vessel. They are still employed in that capacity. Besides security watch, they performed various other services in respect of the general welfare and upkeep of the vessel during her layup and arrest.
The two claimants have never been paid by the owners and operators.
Effective January 13, 1984, the Continental Bank of Canada, the intervenor, took over man agement of the vessel. O'Dwyer and Josefsson were kept on. They performed the identical duties previously carried out for the vessel's owners and operators. There is some dispute as to the rate of pay in the initial few weeks of the new arrange ment. The claimants say they were to be paid at the former rate of $500 per week. The intervenor maintains the original arrangement was for $250 per week.
On the hearing of these motions, I said I would only deal with the two claims up to the date of the new engagement with the intervenor. The amount there involved for each claimant is $9,000 plus interest.
As to the remaining amount claimed by the claimants, $1,250 or, possibly, $750 each, I direct ed an application could be made for directions as to the trial of an issue, failing resolution, among the parties, of the dispute.
Counsel for the Bank agreed the services, per formed by the two claimants between September 3, 1983 and January 13, 1984, including the watchkeeping services, were services falling into the category of those rendered by "seamen".
Undoubtedly, the claimants would, under United Kingdom law prior to 1956, and Canadian law prior to 1971, be entitled to enforce their claim as one for seamen's wages; they would be entitled to a maritime lien giving them priority, in this
case, over many other claims, including that of the intervenor mortgagee. "Seaman" is defined in the Canada Shipping Act, R.S.C. 1970, c. S-9, as follows:
2....
"seaman" includes
(a) every person (except masters, pilots and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship, and
That expression, in English and Canadian law, has been given a broad meaning. There are many cases. I need only refer to some.
The Jane and Matilda Chandler (1823), 1 Hag. Adm. 187 (H.C. of Adm.): the claimant, a female, claimed seaman's wages as a cook and steward on board the vessel while at sea. She advanced a further claim for wages as a shipkeeper during long periods of time when the vessel was in dock or harbour. Lord Stowell allowed her claim, in both capacities, as seamen's wages.
Reg. v. City of London Court (Judge of) and Owners of S.S. Michigan (1890), 25 Q.B.D. 339: the Michigan arrived in the port of London. Her crew, including the mate, were paid off. The mate, without signing fresh articles, remained on board to superintend the discharge of inward cargo and the loading of fresh cargo for the next voyage. The ship was also taken in for repairs. The mate remained on board to supervise that work. The Court held the services were maritime services rendered by a seaman; the mate was entitled to claim a maritime lien.
Connor v. The "Flora" (1898), 6 Ex.C.R. 131: the plaintiff was employed to look after the confec tionery stand on board a passenger vessel. She was held to be a seaman, entitled to claim a maritime lien for her wages.
Mr. Ross, for the intervenor, does not dispute the correctness of these decisions. He contends the claimants here were not "members of the crew"; they cannot assert a claim for wages in this Court; nor are they entitled to a maritime lien giving
priority over other claims. Subsection 22(1) and paragraph 22(2)(o) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 are relied on:
22. (1) The Trial Division has concurrent original jurisdic tion 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.
(2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any claim or question arising out of one or more of the following:
(o) any claim by a master, officer or member of the crew of a ship for wages, money, property or other remuneration or benefits arising out of his employment;
The intervenor relies, as well, on United States decisions where the phrase "a master or member of a crew of any vessel" was considered. Those words came from a compensation Act forbidding payment in respect of disability or death of some one falling within that terminology. The cited American cases concluded a person performing watchman services, while a vessel was in layup, was not a member of a crew.
The United States decisions are, in my view, distinguishable. They are based on particular wordings, founded in a compensation statute, excluding particularly defined persons.
The comments of D. R. Thomas, the author of Maritime Liens, (1980, Vol. 14, British Shipping Laws), at paragraph 327 were referred to. He points out the Administration of Justice Act, 1956, [4 & 5 Eliz. 2, c. 46] in England, in defining admiralty jurisdiction,
... does not perpetuate the expression "seaman" adopted in earlier statutes but introduces a new formulation by which the court is given jurisdiction to determine a claim for wages instituted by a "member of the crew."
The author goes on to speculate that the phrase "member of the crew" is more confined in its ambit than the term "seaman".
Counsel for the intervenor contended paragraph 22(2)(o) of the Federal Court Act should, accord ingly, be given a restricted interpretation; the
claimants here were not members of any crew; they were merely two persons hired as watchkeep- ers; there was, on the facts here, no semblance of a crew.
The intervenor's contention cannot, to my mind, for two reasons, succeed.
First, and least weighty, I think Josefsson and O'Dwyer can be classed as members of the crew of a ship. I see no reason why two seamen cannot, even absent master, officers and other comple ment, in circumstances such as these, be a crew. The Prince George was on layup between voyages. She happened to be arrested. Mere arrest does not mean there is an automatic disbandment of "crew". See Demetries Karamanlis v. The Nors- land, [1971] F.C. 487 (T.D.), at pages 489-491. In Jorgensen v. The Chasina (1925), 37 B.C.R. 24 (Adm.), Martin Lo. J.A. said, at page 25, in commenting on the City of London Court (Judge of) case:
1 note that there is an error in the judgment of Wills, J. in The Queen v. Judge of City of London Court and Owners of S.S. Michigan (1890), 25 Q.B.D. 339 at p. 342, wherein he says that the claimant in the Jane case "acted as caretaker" only, instead of in the conjoint capacities which are carefully set out by Lord Stowell and hereinbefore indicated, and this oversight has unfortunately created some misunderstanding, because it is clear from the whole case that the claimant was at all times upon the ship's articles, or if not at least a member of the crew, however small. [My underlining.]
If it were necessary so to hold, I would find Josefsson and O'Dwyer were each "a member of the crew".
More importantly, paragraph 22(2)(o) is, to my mind, a mere illustration, or example, of the wide admiralty jurisdiction of this Court. Not a possible restriction, as now appears to be the case in the United Kingdom. The drafter of the Federal Court Act, in paragraph 22(2)(o), seems to have bor rowed the key words from the English legislation. But, as specifically stated in the opening words of subsection 22(2), the enumeration of illustrative jurisdictional claims does not exclude, or inhibit, the general jurisdiction given by subsection 22(1) and the definition in section 2. Under that canopy, the claimants here can, under existing Canadian
maritime law, assert a claim for seamen's wages. That, quite apart from any categorization as "a member of the crew".
In Tropwood A.G. et al. v. Sivaco Wire & Nail Co. et al., [1979] 2 S.C.R. 157, the Supreme Court of Canada expressed the view that there was a broader spectrum of applicable and existing maritime law under subsection 22(1), rather than under the specific jurisdictional heads set out in subsection 22(2).'
In summary then, I am of the view the claim ants are each entitled to be paid out of the funds in Court, $9,000 plus interest at the agreed rate, in priority to the other present claimants. I presume counsel can agree on the amount of interest on $9,000 from September 3, 1983 to January 13, 1984. That done, and the figure communicated to the Registry, I shall then issue a formal pronouncement.
\ The claimants are entitled to their costs, after taxation, out of the monies in Court.
I am aware of a body of opinion that there is conflict between Tropwood and the later Supreme Court of Canada decision, Antares Shipping Corporation v. The Ship "Capricorn" et al., [1980] 1 S.C.R. 553. See, for example, W. Wylie Spicer, Canadian Maritime Law and the Offshore: A Primer (Working Paper 6, Canadian Continental Shelf Law 3, March 1984), pp. 4-6 (The Canadian Institute of Resources Law, Faculty of Law, University of Calgary).
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